← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
All The President's Lawyers
00:51:17
This week we follow the money in the Mueller investigation and we talk with a former White House counsel under President Barack Obama about the relationship between presidents and their lawyers, and between this president and his lawyers.
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- [00:06]
Jennifer Taub
What do they owe and when did they owe it? Or really, what do they owe and to whom did they owe it?
- [00:14]
Bob Bauer
At some point, a lawyer has to be very honest with himself or herself and ask the question, am I, by hanging on, actually accomplishing something that is productive and consistent both with the interest of the institution and with my professional responsibility, or have I become an enabler?
- [00:32]
Dahlia Lithwick
Hi, and welcome back to Amicus, Slate's podcast about the courts, the Supreme Court, and the law. I'm Dahlia Lithwick. I cover the courts for Slate. And once upon a time I used to sleep, but I don't anymore because we're crazy. We are in the midst of yet another Anthony Kennedy retirement saga at the Supreme Court this week. This one was triggered by Nevada Senator Dean Heller's comments obtained by Politico last week, intimating that he knew that the justice was going to step down this June. Now, it is certainly, I think, safe to say that that neither Senator Heller, nor you, nor I, nor maybe even Anthony Kennedy knows whether he plans to step down this summer. But also probably safe to say that a whole lot of people will do a whole lot of fundraising in the coming weeks off this rumor. Regardless, this week we thought we would turn to something we don't always pay enough attention to on this podcast, and that's in some small part because there are other podcasts where other people pay attention to it all the time, and that is the Mueller probe. And specifically we want to ask what the ever love and what is important important anymore, and what is ancillary and what is wheat and what is chaff and what it all means to you. Now, later in the show, we're going to talk to Bob Bauer. He served as White House counsel under President Obama, and he writes indispensably for just security and lawfare. But first, we wanted to try to get our heads straight on some news. You can use what matters and what doesn't, particularly in this weird financial crimes white collar portion of the Mueller probe. So the truth is, I'm confused. I totally understood the collusion and obstruction parts that I think understood the hacking portion of the Mueller investigation. But I have run out of brain cells and flashcards now to follow the money part. So there are sprawling news stories in the last couple of weeks. There are meetings in the Seychelles and there's Jared Kushner and there's back channels and they're dead Russians popping up. And I feel often that I've just lost the thread. And one of the joys of my getting to do this show is that I can be dumb. So you, the listener, don't have to be. Joining us this week to handle the financial and the money and the completely bizarre Seychelles, part of the special counsel investigation is Professor Jennifer Taub. She teaches law at Vermont Law School and researches and rights in the areas of corporate governance, financial market reform, securities regulation, white collar crime. Her book, Other People's Houses How Decades of Bailouts, Captive Regulators and Toxic Bankers Made Home Mortgages A Thrilling Business, was published in May 2014 by Yale University Press. And I think she also helped invent the tax march on Twitter. So first and foremost, foremost, Jennifer, welcome to Amicus.
- [03:14]
Jennifer Taub
Thank you. It's my pleasure to be here, Dalia.
- [03:16]
Dahlia Lithwick
So I really do think I speak for a lot of people when I tell you I get a little bit lost, Jen. And so I wanted to have you on the show because I feel like you always say, follow the money, follow the money. And I need you to tell me what Bob Mueller is following. Where is that money leading us, please?
- [03:33]
Jennifer Taub
Even though I try to follow the money very, very closely, there is just so much money involved here. If you're wondering what exactly Bob Mueller isn't following at this point, what I would say is that maybe this is a spoiler alert, but when it comes to that Erik Prince and a Russian banker meeting in the Seychelles, or even that Trump Tower meeting From June of 2016, whatever Mueller has been looking for, I think he's already found it. And what I mean by that is if we step back a bit, Mueller's mandate is really three parts. The first thing, as everybody is probably aware, is that he kind of picked up where FBI Director James Comey left off looking into whether there was any coordination between the Trump campaign and the Russian government. The second part is to also prosecute anyone who interferes with his investigation. And so that would include things like obstruction of justice or false statements. And we've seen a lot of people plead guilty to false statements. But there's just sort of a third part that's a little more open ended, which is to investigate and prosecute any crimes that come up along the way. And I really think this is kind of a triple header when we look at that Seychelles meeting. And in terms of that first question about coordination, that meeting in the Seychelles could be very, very important. We have Donald Trump saying that he has zero investments in Russia and nothing to do with Russia. So we have to ask ourselves why? And this goes to that particular meeting. Why did he have someone or why did someone, Erik Prince, claim that he was a surrogate for the incoming Trump administration, travel down to the Seychelles and attempt to set up a back channel with the Kremlin. Because that is what now we are finding that a new witness to the Mueller grand jury has testified to, there's this guy, George Nader, who apparently set up that meeting. So when I say this is a triple header, at least on the first front, you have to say, well, there was some coordination, albeit post election, before inauguration, trying to coordinate in some way for some purpose with a Russian fund manager tied to the Kremlin that he met with. Secondly, there may be possible other crimes because having any foreign money be directed into a US Political campaign is a violation of federal election law. Right. So the third thing, though is what about, does this go to any interference with the Mueller investigation? And we actually may have another potential defendant in a false statements type case. Erik Prince testified before a congressional committee and he indicated that he just happened upon this particular Kremlin, tied Russian banker at the bar at a hotel in the Seychelles. He claimed that he had traveled down there for other purposes, that he was not there as a representative of the Trump administration. And he still claims that's the case. But we have this other witness who is now testified before a grand jury saying, hey, you know, I actually helped set up the meeting and it was absolutely about trying to set up a back channel with the Kremlin.
- [07:03]
Dahlia Lithwick
There is no crime called collusion. Right? So every time Trump says, no collusion, no collusion, that's not a thing. It's more complicated than that. The thing that Mueller's looking for, and what you're saying is a piece of this has to not just be, did Trump and the Russians get together and agree to take the election from Hillary? It's where was the money directed and what were the financial incentives and the financial payments that prove this? Right.
- [07:34]
Jennifer Taub
Let me just answer that question. There's no federal crime called collusion. There is a federal crime called conspiracy, and there are two branches to conspiracy. We've already seen Mueller charge conspiracy as part of the investigation. The two branches of conspiracy include a standalone crime, conspiracy to defraud the United States. And then there's the other type of conspiracy, again under that same statute, where it's conspiracy to violate another federal law. But what we did see in some of the charges brought by Mueller is that he, for example, against the 13 Russian nationals and the Russian organizations related to interfering in the US Election, he charged as one of the offenses, conspiracy to defraud the United States.
- [08:26]
Dahlia Lithwick
So I know what I'M going to ask of you is unreasonable, but you just referenced we have an awful lot of people who have been charged with federal crimes. 19 individuals, three organizations. We have just way more people involved than I can keep track of anymore. Can you help us through who's been charged with what, who has not been charged and why? That's interesting. And where it's going. And I realize that's a lot of people and entities, but to the extent that you can just make it super clear moving forward.
- [08:56]
Jennifer Taub
So so far there have been six Americans who have been charged. Of those, five have entered guilty pleas. So the first one was George Papadopoulos, and he pleaded guilty to one count of what's called false statements. And this really is essentially lying. He lied to the FBI In January of 2017, right after the inauguration. And what he lied about is contacts that he had in 2016 while he was working as a foreign advisor to the Trump campaign. The second plea came from Michael Flynn. Michael Flynn pleaded guilty also to account of false statements. What Michael Flynn had lied about was contacts he had in late December with the Russian ambassador, Sergei Kislyak. It was really about two different things. One was about the sanct just been imposed upon the Russian government and also about a UN vote concerning Israeli settlements. The third person to plead guilty was Rick Gates pleaded guilty to conspiring to defraud the United states over a 10 year period between 2006 and 2017 by using offshore accounts to hide money he and Paul Manafort had received while working for Ukraine. But he also pleaded to a charge of false statements. There's also a fellow named Alex Sanders Wan, and he was a lawyer at a large global law firm, Skadden Arps, and he pleaded guilty to a false statement. And there is also a fifth individual from the US who pleaded guilty, a guy named Richard Pinedo, who pleaded guilty to identity fraud. And this came out in connection with those charges against the Russian nationals. So our last person who's been indicted but has not pleaded to anything yet is Paul Manafort. And Paul Manafort was the former campaign chairman. He's wearing actually two different electronic bracelets because he has been indicted in two different jurisdictions. He initially was indicted on multiple accounts, including conspiracy against the United States, conspiracy to launder money, false statements, failure to register as a foreign lobbyist. He is also up now on additional tax evasion and bank fraud charges. The reason why I think Paul Manafort might be the most important piece in this puzzle is because he has long standing ties to Russian interests. I don't know if you remember this. But he worked and was paid millions of dollars to help Viktor Yanukovych, who was a Russian supported person, to become elected in 2010. He also has worked for the Russian billionaire Oleg Deripaska since 2005. Deripaska is an oligarch who is very close to Putin, and he was prohibited from coming to the US For a long period of time due to his ties to organized crime. So what makes, I think, Manafort the most sort of interesting individual among the Americans who have been indicted is that he curiously joined the Trump campaign around March of 2016, and then a couple months later, he became campaign chairman. And this was at a time when he was deeply in debt to various Russian business interests. And there's a lot about his communications destined for Oleg Deripaska, that oligarch I mentioned. The motivation for him to perhaps coordinate in a quid pro quo way with the Russian government was to somehow clear himself of these debts. It certainly seems like he had the motive and certainly the moral flexibility, so to speak, to try to personally benefit himself, to clear his debts and use his position on the campaign in that way.
- [13:17]
Dahlia Lithwick
So why hasn't Manafort pled guilty?
- [13:20]
Jennifer Taub
The best thing I can think of is, you know, we just heard the other day a couple things that one of the judges in the cases against him expects that he could, you know, be in prison for life. And that seems like something that would motivate a person to flip. But on the other hand, we just heard the other day about yet another. I don't know how to put this in a. Other than we just heard about another dead Russian. I mean, look, I mean, if you had to choose between life in a white collar federal prison or, I don't know, polonium210 or some crazy nerve agent, I mean, I don't know. I think I choose the door on the left myself. So, you know, there's that, Jen, we.
- [14:13]
Dahlia Lithwick
Hear so often from the Mueller skeptics right and left that so what? So what? So back channels are okay, you're allowed to, you know, talk to people during, you know, before you've been sworn in. What? So what? So there's meetings. Big deal. What's the answer to that?
- [14:31]
Jennifer Taub
The question really isn't, were there secret meetings? But why were there these secret meetings and why were they lied about? The meeting in the Seychelles was just a couple weeks after Jared Kushner, the President's son in law, met in Trump Tower with the Russian ambassador, asking to set up a back channel as well. Shortly After Jared met with the Russian ambassador, he also met with a banker at veb, which is essentially an arm of the Russian government. So was this about the incoming administration or was he really trying to arrange his back channel to try to help his own family business?
- [15:13]
Dahlia Lithwick
When we say follow the money, what we're saying is this becomes hugely problematic when everybody is not divested from their business. They're continuing to reap the financial benefits. So this is beyond just this question of collusion. It's this bleeds into some of the other stuff you've worked on, which is the emolument stuff and the transparency stuff. And how do we know that this isn't really stinky if they're still profiting? Right. Like, this is fixable if you have both transparency and clean lines. Am I right?
- [15:49]
Jennifer Taub
Completely. And I, you know, if the story of Watergate, if the refrain that we often remember from the Watergate hearing was about President Nixon, what did he know and when did he know it? I think here with the Trump Russia scandal, the question is regarding the whole cast of characters. What did they owe and when did they owe it? Or really, what did they owe and to whom did they owe it? Because if you look at so many of the folks, whether it's Jared Kushner with billions of dollars of debt weighing down his family business, or Paul Manafort in debt to Russian oligarchs, or even the history with the Trump Organization, with Donald Trump when he was in deep back in early 2001, when he even told his daughter Ivanka that maybe the homeless man they saw on the street was better off than him because he was a billion dollars at least in debt. Where did he turn? He turned to, to his ties in Russia at the time to help him. And that's where all of the money kind of flowed in from there. According to statements made by his own kids, that's where they were seeing a lot of money coming in. There's definitely motives here, and one of the questions is, was there a quid pro quo?
- [17:09]
Dahlia Lithwick
So this all brings us in a sort of classic roll up fashion. We're hoping everybody turns on the guy who stands on his shoulders and that's, that's how these proceedings generally happen. Are we working our way up to Jared Kushner?
- [17:25]
Jennifer Taub
Jen, at the very least, keep talking. I think the purpose of the classic financial roll up is to flip your way all the way up to the top dog who is the top decision maker or co conspirator. You don't stop now. I think clearly there's a need to look at what's happening with Jared Kushner and his father, Charles Kushner, and the money that came in through Qatar. That sounds suspicious. Don Jr. Should definitely be a target of the Mueller investigation. He agreed to hold a meeting with a Kremlin link lawyer and others in Trump Tower to obtain what he thought would be dirt on Hillary Clinton. And I'm certain that the special counsel is pursuing that. That's an important piece of this puzzle.
- [18:27]
Dahlia Lithwick
Partly because it implicates campaign finance laws, right?
- [18:32]
Jennifer Taub
Exactly. The main question there is whether the special counsel will consider the opposition research or the promise of opposition research and coming from a foreign national to be a thing of value, which is prohibited. So anyone who is a Russian national, who's not also a US Citizen or any business organization in Russia or even the Russian government, is considered a foreign national. And our law is very clear that they can't give anything in value in connection with a campaign. And there is guidance to suggest that opposition research would qualify. And it doesn't even matter if what was brought along to that meeting was what was hoped for. Even the soliciting of it or the offering of it is a violation in and of itself. So to me, I think the meeting in Trump Tower in 2016 is such a critical meeting, because then you say, where else do we go? If you go next to Jared Kushner and after that to Don Jr. I think you go up to the next level to the president himself, because there really is a question as to whether he knew about that meeting, and maybe he is part of that criminal violation there. So we need to know more. If there was a conspiracy to violate federal election law, was he part of that conspiracy?
- [20:04]
Dahlia Lithwick
Jen, can you talk a little bit about the Eric Schneiderman piece of the puzzle? You know, I think the. The simple take that everybody tends to have is, oh, you know, he's doing whatever he's doing at the state level, because that way, no matter what Bob Mueller does and no matter who is pardoned for federal crimes, we're going to have state crimes charged. That's the easy answer. But is there something more complicated going on? Is Schneiderman doing something fundamentally different from what Bob Mueller is probing?
- [20:36]
Jennifer Taub
I agree with you that in some ways, having state attorneys general pursuing claims within their jurisdiction is kind of a, you know, a belt and suspenders type of situation where to the extent that the president attempts to pardon certain witnesses, you know, pardon certain people so that they don't flip as an incentive or don't testify and so on, it could really undermine Mueller's investigation. That's the thinking. And so having available state attorneys general who, again, if certain crimes were committed, for example, in New York, then he could bring the state analog. That's one thing. I'm much more intrigued, though, by the other ways in which Schneiderman has a certain kind of. I was intrigued. I don't know if you saw this the other day when it may have slipped people's eyes, but it kind of gave me the chills. And I hope that folks in the West Wing are paying attention to this, but he just indicted the mayor of Mount Vernon for illegal use of campaign money. I just saw that. That struck a chord for me, and I thought that might be sending an important message to Melania Trump or to the Trump Inaugural Committee.
- [21:59]
Dahlia Lithwick
Saying what? What's the message?
- [22:01]
Jennifer Taub
Well, this was a kind of small potatoes type, you know, illegal use of campaign money. So, you know, the Mount Vernon mayor supposedly used campaign money that he should have been using in cash from his inaugural committee to fund a family trip to Mexico, make payments on an SUV by his wife, a Chanel purse and the like. And I zeroed in on the fact that this indictment wasn't just campaign money, but it was also funds from the Inaugural Committee. And what I thought this was parallel to was that there's a big question about what happened with the $107 million that the Trump Inaugural Committee raised. And I just want to point out that Rick Gates, the guy who just pleaded guilty to some and had a number of charges dropped against him, Rick Gates, assisted on the Trump Inaugural Committee. So he might be a helpful witness there. And we don't know what happened to the 107 million entirely, but what we do know is somehow the inaugural committee paid $26 million to an event planning firm that was started by a friend of Melania Trump. And to me, I thought, that's interesting. And to the extent that this friend resides in New York, I wonder whether. I don't know, I haven't researched this, but I wonder whether Schneiderman would have any jurisdiction over that or not. It seems like another angle, whether that is within federal jurisdiction or whether the state might have some authority to investigate that particular event planning firm. I found that a little bit intriguing.
- [23:48]
Dahlia Lithwick
I love when you white collar people get excited. It's funny. So, Jen, I need to ask you this question. As of this taping, we're just now hearing that Mueller is now widening the net, and he's actually going to subpoena the Trump Organization documents that include Russia and include the Family businesses. And that was a red line for the president, who said, this is when I would go bananas. So, two questions. What does that signal to you? The fact that he's now delving into exactly the matters you and I have been talking about this entire show. And then what's your plan for if and when Mueller gets fired? As is currently being whispered, how's this gonna go down?
- [24:34]
Jennifer Taub
Well, whenever the discussion of what happens if Bob Mueller gets fired comes up, people often have the same series of questions. I think the first one people have is, well, what happens to the grand jury? Does it continue its work? Right. That's one question. The second thing is, what's the big deal? Didn't this just happen? The same thing happen with Watergate after the Saturday Night Massacre and after Bork did the firing, didn't he appoint someone who was good, Leon Jaworski, and we ended up the truth came out and so on. So why is this a big deal? I think that's the second question. And. And the third question is sort of the political one, which is, regardless of what the grand jury will continue to do or not do and whether someone else will just take this over, I think the political question is, if that actually happens in the coming days or weeks, what will the public outcry be? Will we be like South Korea where millions of people hit the streets and this becomes so untenable that maybe the Republican Party actually steps up and begins an impeachment investigation? I mean, what would possibly happen in this country? So I think those are the three questions I have. And unfortunately, I don't have answers to them. Maybe you do.
- [25:56]
Dahlia Lithwick
No, ma'.
- [25:56]
Bob Bauer
Am.
- [25:57]
Dahlia Lithwick
That's why we got you on the show. But we're going to talk to Bob Bower in a minute. Maybe he does, but I think that. I think it's just worth nothing. Focuses the mind, right? Like the prospect of Bob Mueller getting fired or Jeff Sessions getting fired. He would. Presumably, if he were gone and not recused, then the new attorney general could get fired. So. So I think this is, you know, I think I've said before, don't get laser focused on Bob Mueller. There's a lot of other ways that this could be. Be incredibly worrisome. But I think your fundamental point is the right one, which is, if this isn't enough to get people quite, quite anxious about rule of law in the state of democracy, what would be? And I. And I think that's a question to which there is no answer. Jennifer Tubb teaches law at Vermont Law School. She researches and writes in the areas of corporate governance, financial market reform, securities regulation and white collar crime. And she has been following the TikTok of this Mueller probe from the beginning. Jen, thank you so much for joining us this week on Amicus. I know you're just getting over a flu and we appreciate your time.
- [27:05]
Jennifer Taub
Thanks so much, Dalia.
- [27:06]
Dahlia Lithwick
Time now for an announcement for any lawyers who happen to be listening in and I hope you are there. We know who you are and we figured you'll be interested in the following pitch. Slate is looking to hire a lawyer who's also a very sharp writer and thinker to write a new legal newsletter for us. Would you rather think and write and argue about the most interesting legal questions of the day than actually practice law? Me too. Anyway, if that's the case, you should apply. This is not for my job. Please don't send panicky emails. Find out more@slate.com legalwriter now back to the show. We're going to turn now to a different and yet still Trump based inquiry. This time it's about Donald Trump and his lawyers, as in what he wants his lawyers to do all day. This is a question that's taken on real salience, actually this week. As a former adult film star, Stormy Daniels has really tied us up in knots for days on end as she fights to get out from under a non disclosure agreement about a relationship she says she had with the President that the White House is simultaneously denying and also trying to enforce. So I thought it would be a good idea to talk to Bob Bower about the wonderful world of lawyers, in part because he wrote about it this week in Lawfare and also because his article was a bracing reminder to me that the President's lawyers actually have norms and rules and we may have forgotten that. So I want to welcome to the show Bob Bauer. He served as White House Counsel to President Obama, returned to private practice in 2011. In 2013, President Obama named him to be co chair of the Presidential Commission on Election Administration. He's written numerous books about campaign finance and elections law and he's on the faculty now at NYU Law School. He's also a contributing editor of Lawfare. He writes legal commentary for Just Security. And so Bob, I think I want you just to explain to me the way White House counsel thinks about or former White House counsel thinks about White House counsel and then just these norms around what government lawyers do and don't do and the ways in which they've collapsed. And I thought maybe we could start with the very basic question of what does White House Counsel do all day. And how is it different from the other lawyers who are in the President's orbit? Whether it's, you know, the olc, the Attorney General, his personal lawyers, what, what, what does White House Counsel look like?
- [29:35]
Bob Bauer
White House Counsel represents the executive office of the Presidency. Or to, you know, put it more simply, he represents the presidency. Now of course, he's appointed to the position by a particular President with a particular program. And so in some respects it's impossible to say that the White House Counsel doesn't represent the particular President who appointed him and whom he or she serves on a day to day basis. But he's a government lawyer. And so speaking now with someone like Don McGahn, his obligation is to represent the institution. And that's tricky because as I said a minute ago, he represents an individual who almost certainly thinks of himself. Most presidents think of themselves as the client. And yet he has to balance the responsiveness to that particular person who considers himself the client against his overall obligation as a government lawyer to the institution of the Presidency. He's a government attorney. He represents the interests of the public. So that builds on a certain amount of tension. You mentioned the Office of Legal Counsel in the Justice Department. The Office of Legal Counsel discharges functions on delegated authority from the Attorney General. They're Justice Department lawyers and they provide advice to the Executive branch, binding advice to the Executive branch on a whole range of issues. And there again, while the head of OLC is nominated by the President confirmed by the Senate, individual lawyers in the OLC are hired by the OLC leadership. All of them are obligated to consider themselves government lawyers, who on the one hand have that internal client like the Attorney General or, you know, the particular administration they serve, but they have also an overriding obligation to consider the long range interests of the institution.
- [31:24]
Dahlia Lithwick
So can you give me an example, just a really concrete example of historically how that tension manifests? I mean, how, how do you find yourself, if you are White House Counsel, in a situation where the interests of the President and the Office of the President are not aligned?
- [31:42]
Bob Bauer
Here's an example, and I'm picking it because it's sort of so outlandish in some respects. It's both entertaining and it underscores the point I think you want me to make. When John Dean was President Nixon's White House Counsel, he was looking to define the office a certain way. He was very young and he was apparently anxious to establish a presence for the White House Council. So he was looking, if you will, to sort of fill out its portfolio. He wrote a memorandum in which he talked about various functions the White House Counsel could perform, most of which, for example, helping provide clearances for executive branch appointments are fairly standard and continue to this day. But he also volunteered the White House Counsel's support for the enterprise of looking into the backgrounds of potential opponents to President Nixon in his reelection campaign in 1972. Now, that was very important to President Nixon. But the White House Counsel doesn't function as a support to the President in his political capacity. He doesn't function as a support to the President in his personal capacity. He functions in support of the President and advises the President solely in his official capacity.
- [32:55]
Dahlia Lithwick
But that requires a President who understands the difference between his personal attorney and, and his divorce attorney and his White House counsel and his attorney general. And I think one of the things that you wrote this week that was striking to me was this is a President who just really, I think maybe in part because he comes up through New York real estate, but he just wants all his attorneys to be the guy who just fixes stuff, right?
- [33:26]
Bob Bauer
Yes, as far as I can tell. And I think there's a decent amount of evidence to support this view. The President views the lawyers as he views every single other member of his staff, which is individuals who are supposed to deliver the goods. They're supposed to give him the answer that he wants, clear away the obstacles he doesn't want to have to deal with. And in that sense, he wants to put it in his crudest terms, he wants, yes, people in that job. Now, I'm not saying he never listens to a lawyer. I suppose that if a lawyer were to say to him, if you do X, you're almost certainly going to land in jail for the rest of your life. You know, the President might pay attention to that. But overall, the over the sense that you have is that the President doesn't have any appreciation of the professional responsibility of the lawyer to advise. First of all, as an independent professional, which means just by definition, the lawyer can't give the President what he wants. It's not bona fide legal advice if it's tailor made to the President's wishes. And secondly, if the lawyer doesn't appreciate that institutional role that I was talking about just a minute ago, that he's not there just to serve Donald Trump. He's there to assist with the Trump presidency and to represent the presidency as an institution. Now, let me just stress again, there's some balance to be struck. I mean, certainly the White House counsel, like the lawyers at the Office of Legal Counsel, as very good lawyers would be looking for opportunities to provide legal channels for the president to do what he was elected to do. That's legitimate. But there are limits, and you mentioned the word limits previously, and it's precisely limits that I think this president has a huge amount of trouble with.
- [35:08]
Dahlia Lithwick
Yeah, and I think you teased it out in your column really effectively when you compared the ways Michael Cohen, the president's personal lawyer, kind of couldn't say no when he was asked to deflect and lie for the president, and that Don McGahn, when he was asked to, you know, put out a false statement about the possible firing that he was evidently asked to participate in, that he actually wouldn't lie to the president. Is that a function of who those people are, or is that a function of their role as lawyers? One is a sort of personal lawyer for the president and one who answers at some level to the responsibilities of being White House counsel. Maybe that's not a fair question, but clearly one can lie.
- [35:57]
Bob Bauer
Yeah, fair enough. Without speaking, you know, to sort of how Michael Cohen used his job. Because I don't know Michael Cohen. I would say, as far as one can tell, the problem occurs on two levels. The first is that even a lawyer to someone in their personal capacity has to draw certain limits, has to be prepared to say no. It has, in the end, to adhere to a certain standard of independence and professionalism. So that's one core concern any lawyer, even in a personal capacity, would have to have. And then the second problem is managing the pressures from somebody who doesn't understand the role of a lawyer and not yielding, if you will, to the demands from that client for sort of a yes answer. I suppose the two points I'm making are roughly the same. In McGahn's case, you know, he has the additional requirement, if you will, he has to meet the additional requirement of being a public servant, and that's what he is. Michael Cohen isn't. Although I would say, again, I just want to repeat this, so I'm very clear about this. Even as a personal lawyer, it's not as if Cohn is entitled to throw everything out the window to get the president what he wants. The candidate of ethics certainly call on lawyers to be zealous in the representation of their clients, but there are canons, there are ethical limits even on the zealousness of the representation, on the lengths to which lawyers will go to satisfy their client.
- [37:22]
Dahlia Lithwick
Is this, in the end, just a function of. It has historically been the case, and certainly in your lifetime, it's been the case that the lawyers who take positions in the executive branch, in the Justice Department just know the culture, they know the drill. And then when you get people like Michael Cohen in there who are just like, no, this is, this is the way we've always done it, I mean, is it just a failure of D.C. culture to make itself known to the wider world? Or is there something. I mean, I'm just so. I find myself constantly baffled that this is not sort of learnable or teachable, that there are lawyers in the world who just think this is all. All these DC Norms are silly. Am I wrong?
- [38:11]
Bob Bauer
I don't think you're wrong. I think you're putting your finger, particularly with respect to the White House Counsel's office, on a very important vulnerability. And I contrast it for this purpose with the Office of Legal Counsel in the Department of Justice. You know, there you do have an institution that has, I think, a developed culture. The White House counsel's at close quarters with the President. It's a very personal position. In one sense. The President appoints the White House counsel. The White House counsel is not, of course, confirmed by the Senate, and he or she is one floor above the first floor where the Oval Office is located, and is back and forth on a day to day basis addressing the needs that the President has for legal advice or that the senior staff has. And so do I believe there's a consistent set of norms that have been established that all White House counsels clearly understand? No, I think probably there isn't enough of one. And then the second consequence of that or the consequence of that is that in the absence of those norms, what becomes extraordinarily important is the temperament, the character and the expectation of the President himself. And in that situation, if the President has the inclination to view lawyers the way I believe Donald Trump views them and the way he views the rest of his staff, then I think that if you take that together with the sorts of problems, with the absence of a completely developed culture around the office, that can lead to very, very serious problems.
- [39:42]
Dahlia Lithwick
I wonder if there was a line in your piece that I've been thinking about the last couple of days, and I'm just going to read it to you because I think I'm going to ask you to unpack it. And the line is you say Trump's attitude toward law and his use in abuse of lawyers are distinguishing features of his presidency, which may well help bring it down. While prosecutors like Robert Mueller investigate crimes and not people, they also consider whether the individuals who come within their sight in the course of an investigation have illicit intent or motive. Character unavoidably enters in this judgment. By now, it is clear to the special counsel, among others, that this president has a purely instrumental view of lawyers and law. Now, that's what you've been saying. You know, character matters. It matters the tone with which the president views the lawyers. Are you saying that at some point, Mueller is going to start looking at these people who are not playing within the boundaries of the rules and the norms of how things are done and looking askance at them because they have an obligation, even in the absence of the president wanting them to perform on that obligation? Are you saying that Mueller is looking. I guess I'm curious about whose character Mueller's looking at at this moment.
- [41:02]
Bob Bauer
It's impossible to think about this without obviously putting Donald Trump at the center of all of it. So I really had in mind Donald Trump and Donald Trump's behavior toward lawyers, his apparent attitude toward the law. And clearly, you know, to the extent that Mueller's investigating actions by Donald Trump, he's investigating actions, and he's looking at the facts that raise questions about whether the actions comply with the law. But of course, in every case, you know, there's a question of, you know, intent. You know, was there willfulness? Was. Was there mens rea, did the. Is, was there clearly intent to engage in misconduct of the specified kind that he's looking at? And over time, I think it's inevitable. It's certainly been my experience in private practice, you know, prosecutors develop a picture of the person whose conduct is being investigated. And when the time comes to think about those questions of intent, if you will, to make the close calls, to try to decide between version A and version B, you know, particularly the version that the. That the suspect or target is pressing upon the prosecutor, that picture becomes relevant. It shades or colors in some way how they're going to interpret the behavior of the person whose actions they're investigating. What we have is a president who has just count the ways, berated his, and indeed had his White House counsel threatened for not lying publicly about whether or not he'd been given an order to fire Bob Mueller. We have a president who has publicly berated his attorney General for complying with the requirement that he recuse himself under DoD regulations from the Russia investigation. We have a president who has openly pressured his attorney General to undertake investigations into his 2016 political opponent, Hillary Clinton. So you have a president whose respect for law is, I'll put it kindly very much in doubt, whose view of the law is very instrumental. And it's just hard to see how in a case where the president's motives and intent are inevitably going to be presented, that this isn't going to work very much against him in the final assessment by prosecutors.
- [43:27]
Dahlia Lithwick
Is the simpler way of saying what you've just said, that at some level, Bob Mueller is tasked with defending the rule of law, defending the notion that law matters and that lawyers do what lawyers do and that inside, in some fashion that is also part of the mandate, is that just he is tasked with, because no one else can serve as the rule of law backstop, that he is going to be thinking, this president who is purely transactional about the law, that this stands for something when he pushes back. Is that what you're saying as a.
- [44:07]
Bob Bauer
Special counsel whose investigation concerns the president and close aides and family members of the president? It's going to be, of course, very important. Important that Mueller, you know, set aside subjective impressions and the like and stay focused on the law and the evidence. He's a consummate professional. That's what he'll try to do. But on the other hand, you know, on the flip side of what I just said, he is looking at conduct at the by individuals who hold the positions of the highest public responsibility in the United States and in particular, the president. And does that will that enter into how he thinks, what his obligation here is in making final decisions about what happened, what's chargeable and what's not? And I'm setting aside the question of whether he will agree that the president can be indicted while in office. That's a I don't know how he's going to come down on that issue. But I do think, to answer your question squarely, that concern with this investigation and the legacy of this investigation, if you will, as a vindication of the rule of law, has to weigh somewhat in the way the special counsel's team thinks about what their work is.
- [45:17]
Dahlia Lithwick
So that's a great segue to the last thing I wanted to There are a hundred things I want to ask you, but I'm going to ask you this and then have you come back to talk about other things. You talked in your piece about Leonard Garment. He was Richard Nixon's longtime political associate. He eventually becomes a member of the legal defense defense team in Watergate, and he advises Nixon. And you talk about him deciding to stay on because he thinks of Nixon at this point as a, quote, extraordinary leader and a friend. And it led me to ask you to reflect a little bit on the question I often ask people who've served in government, which is, how do you balance the tension between your love of this office, your dedication to the executive branch, your dedication to this person, maybe a little bit of a side of. Also, I think I'm here mitigating damages. If I leave, it's gonna be worse because Omarosa is gonna become the president's legal advisor. How do you balance all these things? And I guess my question is there is this line, and I've been trying to find it for a year, between staying on because you value this president, you value the words because you value the office, and you really are, in your view, bolstering this office and then sliding into colluding with something that is. I think the legal term is bananas. And so I guess I want to ask you to reflect maybe through the prism of Leonard Garment, you know, staying on and advising Nixon, but also, I think we started this conversation about, you know, this is about loyalty to an office.
- [46:57]
Jennifer Taub
How do you.
- [46:57]
Dahlia Lithwick
How do you sort of slip and slide your way through that tension when you genuinely believe, as I suspect a lot of people who have stayed on in good faith genuinely believe that they're doing that because of some higher calling.
- [47:13]
Bob Bauer
Yes. And it would be very easy for people, particularly if they love the job and if they have believed at some point in the person they're serving, it'd be very difficult for people to deal with that issue. I'm sure it's not. Not easy. We're all human. I suppose the term that comes to mind and the trap you wouldn't want to fall into is the term enabler and the trap of becoming an enabling party. So, in other words, at some point, a lawyer has to be very honest with himself or herself and ask the question, am I, by hanging on, actually accomplishing something that is productive and consistent both with the interests of the institution and with my professional responsibility, or have I become an enabler? Am I simply here 75% of the time to basically allow something I don't approve of to go on, that I shouldn't approve on to go on that's inconsistent with the public interest to go on, even if 25% of the time I periodically express some concern? I take the White House chief of staff aside and I tell them I'm worried about it, and then I let it drop if nothing happens? So I satisfy myself that I've expressed my concerns, you know, that I have given effect to my conscience by just. By and large, for the record, now and then being worried about something and being open that I'm open that I'm worried about something, but then I just go on with an institution, with an arrangement, with a culture, and with, frankly, an employer who is engaged in activities that I as a lawyer should not be enabling. And that's a very hard issue to face. Where it really collapses, I think, in the White House is if the White House itself, because I spoke of culture earlier itself, suffers from a rancid culture. So that not only do I have the problem that I have with the president, but I have nowhere else to turn, no other allies in the building like the chief of staff, to bolster my efforts to maintain a professional posture toward the president. And, you know, if a lawyer, you know, looks at all of that and recognizes that the role has become fundamentally an enabling role, then I honestly don't believe that he or she can defend staying there any longer. I don't know the facts right now of the different wars that the current White House counsel has fought, how many he's won that we don't hear about, how many he's lost that we do hear about. So I don't know what his batting average is. I don't know how much support he's getting with what success from elsewhere in the building. But I think those are the questions that obviously I'd be surprised if he wasn't asking himself. And I, you know, I think that at the end of the day, that's what lawyers cannot ultimately be and remain good lawyers. They cannot become their clients, enablers.
- [50:01]
Dahlia Lithwick
Bob Bower served as White House counsel under President Obama. In 2013, the President named him to be co chair of the Presidential Commission on Election Administration. He's written multiple books on campaign finance law, elections law, and is on the faculty at NYU Law School. He's also a contributing editor of Lawfare and Rights for Just Security. All indispensable in this moment. And thank you so much, Bob, for giving us a little bit of your time.
- [50:26]
Bob Bauer
Thank you. It was a pleasure.
- [50:28]
Dahlia Lithwick
And so unlike the Bob Mueller investigation, this episode of Amicus has now come to an end. Thank you so much for listening. If you would like to get in touch with us, our email, as ever, is amicuslate.com you can always find us@facebook.com amicus podcast in both fora. We love to hear your questions, your comments, your thoughts about future shows. Today's show was produced by the divine Sara Burningham. Steve Lichti is our executive producer. June Thomas is managing producer of Slate Podcasts. And we will be back with you in two short weeks for another episode of Amethyst.