Because Justice Department policy forbids an indictment of a sitting president, Robert Mueller chose not to say the President obstructed justice. But Mueller also refused to say that “the President clearly did not commit obstruction of justice.” So the President is neither accused nor exonerated. What about the President’s personal lawyers? They don’t enjoy the President’s immunity from indictment. The Mueller Report has dozens of references to the conduct of Rudolph Giuliani and many more references to “the President’s personal counsel,” a group that includes Giuliani, Jay Sekulow, and others. Here are just a few of the Report’s references:
Pardons for Manafort
Immediately following the revocation of Manafort’s bail, the President’s personal lawyer, Rudolph Giuliani, gave a series of interviews in which he raised the possibility of a pardon for Manafort. Giuliani told the New York Daily News that “[w]hen the whole thing is over, things might get cleaned up with some presidential pardons.” Giuliani also said in an interview that, although the President should not pardon anyone while the Special Counsel’s investigation was ongoing, “when the investigation is concluded, he’s kind of on his own, right?,” (Vol. 2, p. 124.)
[T]he President’s personal counsel stated that individuals involved in the Special Counsel’s investigation could receive a pardon “if in fact the [P]resident and his advisors . . . come to the conclusion that you have been treated unfairly”—using language that paralleled how the President had already described the treatment of Manafort.” (Vol. 2, p. 131.)
On November 26, 2018, the Special Counsel’s Office disclosed in a public court filing that Manafort had breached his plea agreement by lying about multiple subjects. The next day, Giuliani said that the President had been “upset for weeks” about what he considered to be “the un-American, horrible treatment of Manfort.” (Vol. 2, pp. 127-28.)
Manafort told Gates that he had talked to the President’s personal counsel and they were “going to take care of us.” Manafort told Gates it was stupid to plead, saying that he had been in touch with the President’s personal counsel and repeating that they should “sit tight” and “we’ll be taken care of.” Gates asked Manafort outright if anyone mentioned pardons and Manafort said no one used that word. (Vol. 2, p. 123.)
Threatening General Flynn
After Flynn withdrew from a joint defense agreement [JDA] with the President and began cooperating with the government, the President’s personal counsel left a message for Flynn’s attorneys reminding them of the President’s warm feelings towards Flynn, which he said “still remains,” and asking for a “heads up” if Flynn knew “information that implicates the President.” When Flynn’s counsel reiterated that Flynn could no longer share information pursuant to a joint defense agreement, the President’s personal counsel said he would make sure that the President knew that Flynn’s actions reflected “hostility” toward the President. (Vol. 2, p. 6.)
Cohen’s False Testimony to Congress
In the months leading up to his congressional testimony, Cohen frequently spoke with the President’s personal counsel. Cohen said that in those conversations the President’s personal counsel would sometimes say that he had just been with the President. Cohen recalled that the President’s personal counsel told him the JDA was working well together and assured him that there was nothing there and if they stayed on message the investigations would come to an end soon. At that time, Cohen’s legal bills were being paid by the Trump Organization, and Cohen was told not to worry because the investigations would be over by summer or fall of 2017. Cohen said that the President’s personal counsel also conveyed that, as part of the JDA, Cohen was protected, which he would not be if he “went rogue.” Cohen recalled that the President’s personal counsel reminded him that “the President loves you” and told him that if he stayed on message, the President had his back.
In August 2017, Cohen began drafting a statement about Trump Tower Moscow to submit to Congress along with his document production….
Cohen’s statement was circulated in advance to, and edited by, members of the JDA. (Vol. 2, pp. 139-141.)
Cohen understood based on this conversation and previous conversations about pardons with the President’s personal counsel that as long as he stayed on message, he would be taken care of by the President, either through a pardon or through the investigation being shut down. (Vol. 2, p. 147.)
For those of us who study the behavior of lawyers, the intriguing questions these and other passages raise are: What did the President’s personal lawyers think they were doing? Did they stay on the safe side of the legal and ethical lines that lawyers like to boast they will go “right up to” on behalf of their clients? Or did they cross the lines? We cannot definitively answer these questions, not yet anyway, but we can say that if the lawyers behaved as the Report describes, at a minimum they took very foolish risks.
Obstructing justice with threats or promises is not a service lawyers are permitted to perform for their clients. Nor is helping a client lie to Congress. Maybe a President is free to exercise his pardon power any way he wishes and even if doing so impedes justice. Or maybe not. Lawyers disagree about that. (Far fewer lawyers disagree over whether the President can dangle a pardon even if he can issue one.) But whatever immunity the President may enjoy does not extend to his lawyers.
The Mueller Report tells us that Giuliani floated the prospect of a pardon when Manafort was facing decades in prison and at a time that he could have been tempted to trade information harmful to the President for leniency. How is that any different from a subject of an investigation floating the possibility of a large cash gift or coveted job to a person in a position like Manafort’s? The Report also tells us that when Flynn withdrew from the joint defense agreement and refused any longer to share information with the President, “the President’s personal counsel” said he would ensure that the President knew that Flynn’s actions reflected “hostility” toward the President. How is that not a threat of retribution for “flipping,” a word Trump has used disdainfully, publicly, and often? And if the President’s personal counsel knowingly aided Cohen’s false congressional testimony, they can be equally guilty of lying to Congress. 18 U.S.C. §§1505, 1512, & 1515.
The open question is about intent. Did the lawyers act “corruptly” when they said and did the things the Mueller Report describes? Perhaps the broadest of the obstruction provisions is §1512(c)(2), which makes it a crime if a person “corruptly…obstructs, influences, or impedes any official proceeding, or attempts to do so.” A grand jury, a court, and a congressional hearing are official proceedings. And courts define “corruptly” broadly. United States v. Gordon, 710 F.3d 1124, 1151 (10th Cir. 2013), which the Mueller Report cites, says a person acts “corruptly” if he acts “knowingly and dishonestly with the specific intent to subvert, impede or obstruct” an official proceeding.
Conduct that obstructs justice can also run afoul of lawyer ethics rules. In New York, for example, where some of the President’s lawyers are admitted, it is a violation to “engage in conduct that is prejudicial to the administration of justice.” Rule 8.4(d) (also in the rules of other U.S. jurisdictions). Justice is what Mueller was administering through grand jury and court proceedings. Obstructing justice is, of course, “prejudicial to the administration of justice.” It is also a violation of the New York rules for a lawyer to engage in conduct that “adversely reflects” on his or her “fitness.” Rule 8.4(h). The Report’s findings show possible violations of both rules. Pardons are no defense to bar professional discipline.
Maybe one or more of the Mueller Report’s redactions refer to ongoing investigations of one or more of the President’s lawyers. Maybe the lawyers are now the subjects of investigation by state disciplinary bodies. Even if not, the lawyers flirted with a risk of legal and ethical sanctions. They did not owe it to their client to do so.