The Ukrainian “Drug Deal” and All the President’s Lawyers

A drug deal, by definition, is illegal. So when former National Security Adviser John Bolton directed Fiona Hill on July 10 to tell Deputy White House Counsel John Eisenberg that Bolton was “not part of whatever drug deal Sondland and Mulvaney are cooking up,” it was to get the lawyer to protect Bolton – and the U.S. government – from the illegal scheme he believed Amb. Gordon Sondland and Mick Mulvaney were concocting.

There’s a distinction between appropriate professional zeal — helping a client achieve lawful goals — and unethical conduct — assisting a client in a crime or its cover-up. This is a distinction that has tripped up high-level officials in the past, as illustrated by the 14 lawyers disbarred or suspended and the 11 lawyers convicted of crimes in Watergate.

Today, the emerging picture of how key lawyers in the Trump administration are operating bears a striking similarity. Eisenberg – along with other lawyers in the White House, the Office of Management of Budget (OMB) and the Department of Justice (DoJ) – appear to be acting more like operatives helping to facilitate an illegal scheme, rather than lawyers with an obligation to end it.

When these lawyers were asked to address potentially illegal conduct by government officials, they took steps to cover it up. When they were called upon to act as a legal gatekeeper, they gave their blessing to violations of law or ignored persistent warnings. When they were approached for legal advice, they distorted the law rather than explain how it actually works. Acting more like Trump’s co-conspirators than lawyers, they failed to protect their true client, the federal government. Government lawyers, like corporate lawyers, owe a duty of loyalty to the organization — the city, state or federal government they serve — not to its mayor, governor or president.

White House Counsel

Let’s start with the White House lawyers. Three different National Security Council (NSC) staffers (Hill, Wells Griffith and Army Lt. Col. Alexander Vindman) went to White House lawyer Eisenberg, alarmed by Sondland’s statement to Ukrainian officials that if Ukraine pursued investigations politically beneficial to President Donald Trump, Mulvaney would arrange a much-desired White House meeting for Ukrainian President Volodymyr Zelenskyy.

We don’t know whether Eisenberg investigated this “drug deal,” or if he asked Sondland or Mulvaney about it. We do know he spoke with White House Counsel Pat Cipollone, who “suggested” that Eisenberg “tell Mr. Trump that White House staff members had raised concerns about a shadow Ukraine policy.” Eisenberg “never followed up on the suggestion,” according to the New York Times.

Two weeks later, on July 25, Trump had his now-infamous phone call asking Zelenskyy to investigate Joe Biden. Within an hour of that call, Vindman returned to Eisenberg, raising his concerns about the president’s request. A second NSC staffer on the call, Timothy Morrison, also went to Eisenberg, asking him to review the call transcript.

In response, Eisenberg hid the transcript on the White House’s most secure computer server (normally reserved for intelligence sources and methods).

CIA General Counsel

The conduct of lawyers at the Central Intelligence Agency (CIA) stands in sharp contrast to that of the White House lawyers. A whistleblower reached out anonymously to a CIA lawyer and expressed concern about a phone call between the president and a foreign leader. That information quickly reached the agency’s general counsel, Courtney Simmons Elwood. She conducted a preliminary inquiry, including multiple conversations with Eisenberg. After determining that the whistleblower’s allegations had a “reasonable basis,” she made a criminal referral to the Justice Department on August 14, during a regularly scheduled phone call that included both Eisenberg and John Demers, the head of the National Security Division.

Ethical duty to protect the organization

Normally, a lawyer’s job is to help clients achieve their goals. But there are limits. A lawyer who learns that a client is engaged in criminal conduct must not assist in the crime. For example, a lawyer for a company who learns that a high-level company official is engaged in illegal conduct must not help the official in that illegal conduct.

Ethics rules impose an additional duty on lawyers who work for organizations: to act “in the best interest of the organization,” which may require the lawyer to refer the matter “to higher authority in the organization.” This duty applies whether the client is a private company or the government. A statute imposes a similar duty on executive branch employees. If an employee learns of an allegation that a federal official has committed a crime, the employee must report it to the attorney general.

When Eisenberg and Cipollone learned of President’s Trump’s criminal scheme, they were put into an uncomfortable position. But their ethical and legal duties were clear. They had an ethical duty to protect their client, the Office of the Presidency, and a statutory duty to report the crime to the attorney general. Instead, these White House lawyers attempted to shield Trump from accountability for his conduct. Eisenberg hid the call “transcript” on a classified server and has refused to comply with a Congressional subpoena, and Cipollone tried to hide the information from Congress.

OMB General Counsel

The Office of Management of Budget (OMB) played a critical role in Trump’s scheme, delaying the Ukrainian military aid nine separate times while Trump, Sondland, Rudy Giuliani and others continued to pressure Zelenskyy and his staff. OMB lawyers served as gatekeepers, required to certify that each of these funding delays was legal under the Impoundment Control Act (ICA), a statute requiring agencies to spend the money Congress appropriated before the end of the fiscal year on September 30. If an agency knows it’s going to miss that deadline, it must notify Congress.

In July, an OMB political appointee, Mike Duffey, told OMB career official Marc Sandy that the president wanted to place a hold on the Ukrainian military assistance that Congress had appropriated. Sandy explained that they needed to check with the Pentagon as well as OMB lawyers about the legality of any delay. After a Pentagon official confirmed that a brief delay would not prevent Ukraine from getting its appropriated military aid by the end of the fiscal year, OMB issued a temporary hold on July 25, and OMB’s lawyers gave their approval. The document authorizing the hold (called an “apportionment”) asserted that the delay was necessary to “allow for an interagency process to determine the best use of such funds.” That phrase seemed to refer to a series of NSC-led interagency meetings on Ukraine aid – meetings that ended in late July.

Weeks went by, and Trump wanted OMB to extend the delay. The Pentagon warned OMB that a delay beyond August 12th could violate the ICA. OMB went forward with the delay anyway, repeating the same “interagency process” justification even though no such process was taking place. OMB lawyers signed off.

Six more times in August and September, OMB ordered further delays. The Pentagon told OMB that these delays would “jeopardize the Department’s ability to obligate [Ukraine Security Assistance Initiative (USAI)] funding prudently and fully, consistent with the Impoundment Control Act” and would “trigger the ICA’s requirement to transmit to Congress a special message.” Still, OMB lawyers signed off on the delays — even though they violated the Impoundment Control Act — as the Government Accountability Office determined earlier this month. At least one lawyer at OMB dissented, and left the agency.

OMB’s top lawyer, Mark Paoletta, tried to defend these actions in a Dec. 11 letter to Congressional investigators. But that letter may actually compound his ethics problems because it appears to be misleading, if not an outright lie. Paoletta asserted that, “at no point during the pause in obligations did DOD OGC [Office of General Counsel] indicate to OMB that, as a matter of law, the apportionments would prevent DOD from being able to obligate the funds before the end of the fiscal year.”

Yet recently disclosed documents show that the Pentagon’s Acting Comptroller Elaine McCusker repeatedly warned of the risk – and then the certainty – that this would occur, including:

  • Aug. 9: any delay beyond August 12 could preclude DoD from meeting the fiscal year deadline.
  • Aug. 12: “continued delays” would increase the risk.
  • Aug. 26: the delays “have put our ability to execute at risk.”
  • Aug. 27: “we have repeatedly advised OMB officials that pauses beyond Aug. 19, 2019 jeopardize the Department’s ability to obligate USAI funding prudently and fully, consistent with the Impoundment Control Act … any further delays in obligating USAI funding will trigger the ICA’s requirement to transmit to Congress a special message proposing rescission or deferral of funding for the USAI.”
  • Sept. 9: The Pentagon will not be “able to ‘fully’ obligate by the end of FY total ~$120M based on the current hold. If the hold continues this amount will grow.”

McCusker also asked OMB about the status of “impoundment paperwork” on Aug. 26 and Sept. 9.

Paoletta’s letter refers specifically to DoD’s “OGC” (Office of General Counsel), and these warnings came from the comptroller rather than the general counsel. That distinction might shield him from prosecution for making a false statement. But his misleading letter may violate the legal ethics rule prohibiting “dishonesty, fraud, deceit or misrepresentation.”

Justice Department

Unfortunately, as we learned from Attorney General Bill Barr’s handling of Special Counsel Robert Mueller’s report, this Justice Department is where information about Trump’s crimes goes to die.

Elwood believed her Aug. 14 phone conversation with Demers was a criminal referral. The Justice Department claims that it did not recognize her call as a “criminal referral,” and it did not trigger a criminal investigation. Nonetheless, it did prompt Demers to go to the White House the following day and read the call transcript.

In the meantime, the whistleblower filed a formal complaint with the Intelligence Community Inspector General (ICIG), who found it to be credible and “an urgent concern” under an intelligence whistleblower statute. On Aug. 26, the ICIG delivered the whistleblower’s complaint to the Acting Director of National Intelligence (DNI), who then had seven days to deliver it to the congressional intelligence committees.

Instead, the Acting DNI sought guidance from Cipollone, who wanted to avoid disclosing the whistleblower’s complaint to Congress. Cipollone reached out to Steven Engel, head of DoJ’s Office of Legal Counsel (OLC), who provided the legal advice Cipollone sought. OLC claimed that the whistleblower’s allegation concerned “a confidential diplomatic conversation between the President and a foreign leader” rather than an “intelligence activity,” and therefore did not have to be disclosed to Congress. This “legal advice” would help the Trump White House bury the whistleblower’s complaint, but it would also undermine broader protections for whistleblowers. Alarmed by those implications, 67 inspectors general signed a letter finding fault with OLC’s misinterpretation of the law.

When a lawyer gives legal advice, she can’t just spin out arguments that a client wants to hear. A lawyer has a professional obligation to be candid when providing advice to a client. One-sided advocacy won’t cut it. The lawyer also must acknowledge weaknesses or counterarguments where they exist.

OLC did forward the whistleblower’s complaint to DoJ’s Criminal Division, headed by Brian Benczkowski, a political appointee with no previous experience as a prosecutor, who took a “see-no-evil” approach, failing to interview witnesses or examine email or other documentary evidence of the scheme. Benczkowski refused to even consider whether the July 25 phone call was evidence of bribery, honest services fraud, or other criminal violations. Instead, he narrowly focused on whether Trump’s request for an investigation of Biden was an illegal solicitation of a campaign contribution from a foreign national. Within this inexplicably narrow scope, the Justice Department concluded that Trump did not violate campaign finance law because the requested investigations into Biden “didn’t amount to a ‘thing of value’ that could be quantified,” a claim one expert labeled “laughable.”

At every turn, lawyers at the top of the Justice Department – the National Security Division, the Office of Legal Counsel and the Criminal Division — protected Trump rather than act “in the best interest of” their client, the United States.

John Dean, White House Counsel under President Richard Nixon, recognized that lawyers were at the center of the Watergate scandal, and asked, “how in God’s name could so many lawyers get involved in something like this?” We need to ask that same question about the lawyers who have helped Trump abuse his office.

Image: Pat Cipollone, White House counsel, waits for an elevator as he arrives at the U.S. Capitol on January 22 in Washington, DC. Photo by Drew Angerer/Getty Images

 

About the Author(s)

Kathleen Clark

Practices law in Washington, DC, and is a law professor at Washington University. Follow her on Twitter (@clarkkathleen).