On Sunday, Peter Baker and Kenneth Vogel of the New York Times reported on strains within the White House Counsel’s Office about strategy in responding to the Special Counsel Robert Mueller’s investigation into Russian election meddling.
That White House lawyers would differ on strategy is commonplace. A public airing of legal team tensions is troubling but not unheard of. But as someone who has handled sensitive investigative matters for two presidents, I am absolutely floored that this story was fueled by an unguarded conversation between Ty Cobb, the attorney hired by the White House to handle the Russia investigation, and Trump’s personal attorney John Dowd at BLT Steak restaurant.
In what should be a surprise to almost no one who has ever been to BLT Steak (1625 I Street, NW), there were New York Times (Washington bureau, 1627 I Street, NW) reporters within earshot. Cobb reportedly described a White House lawyer as “a [Don] McGahn spy” and mentioned a colleague whom Cobb blamed for “some of these earlier leaks” and who had “tried to push Jared [Kushner] out.” Of most interest to criminal prosecutors and congressional investigators, Cobb referenced “a couple of documents locked in a safe” in McGahn’s office to which Cobb wanted access.
This raises significant questions about professional judgement, professional ethics, evidence privileges, and those mysterious documents kept by McGahn that will likely prove irresistible for investigators to ignore.
I won’t belabor the first question, but I think this episode demonstrated terrible judgment for two men who have professional obligations to maintain confidences for the president in his personal capacity (Dowd), and the president in his official capacity and presidency (Cobb). The political electricity around the Russia investigation is high voltage, and both of these lawyers know full well that scores of people in Washington’s power lunch crowd will be highly attuned to its buzz.
As to the second question of professional ethics, I make no claim to a rules violation based on my limited access to the relevant facts. However, this episode certainly presents ethics considerations. Rule 1.6 of the D.C. Rules of Professional Conduct govern lawyers’ obligations to maintain client confidences. I have concerns about lawyers’ failure to safeguard information from disclosure to other restaurant patrons. But I am also concerned about Cobb’s reported disclosures to Dowd.
One thing to note right off the bat: Cobb is a White House lawyer, whose salary is drawn from the public treasury and whose client is the Executive Office of the President. See Rule 1.6 (k) (“The client of the government lawyer is the agency that employs the lawyer unless expressly provided to the contrary by appropriate law, regulation, or order.”). John Dowd, in contrast, is part of Donald J. Trump’s personal legal team, paid for by nonpublic funds. While there will be overlap in interests between Trump the man and Trump the president, they are distinct and could diverge dramatically. Communication by lawyers across that public-private axis must still conform to confidentiality rules.
Under D.C. Bar rules, unless there is an express exception, “a lawyer shall not knowingly: (1) reveal a confidence or secret of the lawyer’s client; (2) use a confidence or secret of the lawyer’s client to the disadvantage of the client; or (3) use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.” Rule 1.6 (a). A “confidence” is either attorney-client protected information or “other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.” Rule I.6(b). According to Comment 8 to the rule, this ethical obligation to maintain confidences and secrets, unlike the attorney-client privilege, “exists without regard to the nature or source of the information or the fact that others share the knowledge. It reflects not only the principles underlying the attorney-client privilege, but the lawyer’s duty of loyalty to the client.”
It strikes me that the New York Times disclosure of internal White House lawyer discord is “embarrassing” to the office, and the public disclosure of these matters could be “detrimental” to the office.
But these disclosures might also be problematic if no reporters had been present. There are certainly legitimate areas of coordination and information sharing between lawyers for the White House and personal lawyers for its occupant. However, each White House disclosure must be justifiable under the rules. What benefits the Office of the President for the president’s private attorney to hear about divergences McGahn and Cobb over legal strategy? There may be a good answer, but that is a question that must be answered as a predicate to disclosure.
There are exceptions to the confidentiality rules. For example, a “lawyer may use or reveal client confidences or secrets with the informed consent of the client.” Rule 1.6 (e) (1) (emphasis added). A lawyer may also make disclosures when the lawyer has reasonable grounds for believing that a client has impliedly authorized disclosure of a confidence or secret in order to carry out the representation. Id. at ¶ (e) (4).
Given the reportedly furious reactions by McGahn and White House Chief of Staff John Kelly, it does not appear that Cobb had been granted informed consent or implied authorization to make these disclosures. Perhaps Cobb does have implied authorization to make some disclosures to Dowd, but I’m not sure the information contained in the Times story fits that bill. There is also an exception where a government lawyer to disclose confidences when “permitted or authorized by law,” although I fail to see the applicability here. See id. at ¶ (e) (2).
Third, there is a question of legal waiver of applicable privileges. The attorney-client privilege can be waived as to whole subjects by partial disclosures, and as to third parties not subject to the disclosure. See generally Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine, Part 1, Section IV (“Waiver of the Attorney-Client Privilege”). Loss of the privilege can be devastating for clients.
There are additional complications when government attorneys are involved. After the D.C. Circuit holding in In re Bruce R. Lindsey compelled President Bill Clinton’s Deputy White House Counsel to testify before a grand jury, attorney-client privilege is presumed to be significantly weaker for government attorneys than for private counsel. The court held: “Examination of the practice of government attorneys further supports the conclusion that a government attorney, even one holding the title Deputy White House Counsel, may not assert an attorney-client privilege before a federal grand jury if communications with the client contain information pertinent to possible criminal violations.” Therefore, Dowd would have to take that risk into account as to any disclosures he makes to public attorneys like Cobb.
Executive privilege stands on a somewhat different footing. Waivers allowing for the disclosure of broad subject matter are disfavored, limiting the waiver to specific documents or information that have already been released, since “executive privilege exists to aid the governmental decisionmaking process, a waiver should not be lightly inferred.” In re Sealed Case (Espy) (quoting SCM Corp. v. United States, 473 F. Supp. 791, 796 (1979)). As such, in Espy, the court held:
The White House’s release of the White House Counsel’s final report also does not constitute waiver of any privileges attaching to the documents generated in the course of producing the report. It is true that voluntary disclosure of privileged material subject to the attorney-client privilege to unnecessary third parties in the attorney-client privilege context “waives the privilege, not only as to the specific communication disclosed but often as to all other communications relating to the same subject matter.” But this all-or-nothing approach has not been adopted with regard to executive privileges generally, or to the deliberative process privilege in particular. Instead, courts have said that release of a document only waives these privileges for the document or information specifically released, and not for related materials. This limited approach to waiver in the executive privilege context is designed to ensure that agencies do not forego voluntarily disclosing some privileged material out of the fear that by doing so they are exposing other, more sensitive documents.
However, the White House has waived its claims of privilege in regard to the specific documents that it voluntarily revealed to third parties outside the White House, namely the final report itself and the typewritten text of document 63, which was sent to Espy’s Counsel.
Note that the court treats disclosures to Espy’s counsel as waivable disclosures for materials the White House sought to pull within an assertion of executive privilege. Dowd, as a private capacity lawyer, would be treated the same way for purposes of executive privilege. To date, the President has not asserted executive privilege in the face of legally compelled process, but White House lawyers should be making every effort to maintain legitimate confidentiality interests of the institutional executive branch.
Fourth, there is a question of new investigative leads. What is the nature of the “couple of documents locked in a safe” in McGahn’s office? That will be catnip for congressional investigators and the Special Counsel. In addition, Cobb’s reported portrayal of McGahn as resistant to transparency will come back to haunt the White House. It is not helpful to McGahn’s credibility with prosecutors investigating obstruction of justice. I imagine at some point we will see that characterized as noncooperation and stonewalling in congressional letters.
Washington superlawyer Bob Bennett, one of my mentors and Cobb’s former partner, once told me a story about his time as a young federal prosecutor. He had to prep a police officer for testimony at a trial the next day. They decided to do it at a local Irish pub instead of the office. The next day, on cross examination, the defense counsel started asking the police officer about things Bob had said during prep. Apparently, the defense lawyer had also been at the bar. Bob jumped up to object. When the judge asked for the basis of the objection, Bob explained the situation and responded, “the drinking privilege, your Honor.” Thereafter, according to Bob, certain D.C. courtrooms recognized the “drinking privilege” as shorthand for “there’s no legal basis but that just ain’t right to use.” It is one of my favorite stories. But as Bob told it, it was also a cautionary tale about safeguarding your case.
The drinking privilege is no bar to reporters, and other more formal potentially available privileges are less secure than before the BLT Steak summit. As Fred Barbash quipped, “who needs leaks when lunch reservations will suffice?”
Image: Nelson Barnard/Getty