How Trump Digs a Deeper Legal Hole When He Tweets
Violating the lawyer’s rule of thumb that clients remain quiet is rarely a good idea.
President Donald Trump can’t be stopped from tweeting and otherwise talking about the Russia investigation. But by continuing to expostulate, he risks not only incriminating himself but irritating the prosecutor overseeing the probe.
Some observers speculated that the arrival of Trump’s personal lawyer, Marc Kasowitz, would spell the end of the president’s off-the-cuff comments. Not so. Whatever Kasowitz has told his longtime client, the president is still running his mouth.
On Sunday morning, the president tweeted: “I believe the James Comey leaks will be far more prevalent than anyone ever thought possible. Totally illegal? Very ‘cowardly!’”
Two days earlier, during a testy Rose Garden press conference, he accused Comey of perjury during his testimony last Thursday before the Senate Intelligence Committee. In addition, Trump declared that the hearing failed to establish that he’d colluded with the Russians to manipulate the 2016 election or tried to stop the federal probe of whether Trump aides helped the Russians with their hacking. “No collusion. No obstruction. He’s a leaker,” Trump said, the last part referring again to Comey, whom Trump fired as FBI director in May. Asked if he’d testify under oath, Trump answered, “100 percent.”
So, why does this matter? First, there’s the attorney’s rule of thumb that a client anywhere in the vicinity of a criminal investigation ought to keep his trap shut. “It’s 100 percent clear that the rule in the normal criminal case is not a word from the client,” says Harry Litman, a former federal prosecutor who teaches at UCLA Law School and practices with the firm Constantine Cannon. “A president may have different political imperatives, but Trump’s tweet logorrhea does not reflect a well-thought-out strategy.”
Appearing on CBS’s “Face the Nation” on Sunday, Republican Senator Lindsey Graham of South Carolina imagined warning Trump: “You may be the first president in history to go down because you can’t stop inappropriately talking about an investigation that, if you just were quiet, would clear you.”
A talkative client runs the risk of intensifying prosecutorial scrutiny. In this case, the prosecutor is Special Counsel Robert Mueller. I’m going to go out on a limb and say that it’s highly unlikely Mueller saw the Comey hearing as exonerating Trump of obstruction of justice. To the contrary, Mueller is almost certainly investigating the related Michael Flynn and Comey-firing angles.
Flynn probe: According to Comey, the president said in February that he hoped Comey would drop the part of the investigation focused on Flynn, the dismissed national security adviser. Three times during the Friday press conference Trump replied to questions by unreservedly denying he said any such thing to Comey. If Mueller finds Comey more credible on this point—and Comey says he’s turned over to Mueller contemporaneous notes of all his conversations with the president—Trump’s public denials make it more likely the special counsel will view the president as a liar.
Comey firing: Mueller will also explore whether Trump’s firing of Comey was part of an attempt to obstruct the investigation. Comey certainly thinks so, having testified, “I take the president at his word that I was fired because of the Russia investigation.” Trump himself provided the basis for Comey’s position. During a May 11 television interview, the president admitted that he was thinking about the Russia probe when he decided to oust Comey.
Trump, through his comments, has limited his lawyer’s maneuvering room. The “100 percent” promise means that if Mueller asks the president to testify under oath—and Mueller eventually will ask—the president has unilaterally disarmed himself from arguing that there’s some reason he shouldn’t have to be questioned under penalty of perjury.
Finally, there’s the squishier issue that Trump’s attempts to smear Comey may well bother Mueller on a personal level. When he was FBI director in the 2000s, Mueller worked with Comey, then the deputy U.S. attorney general. The Boston Globe observes: “The two men have had similar careers. Both have been top federal prosecutors. Both have been FBI directors. Several people who know both men say they respect each other.”
Mueller has a reputation for independence, and he’s not going to go after Trump to vindicate a former colleague. But even prosecutors are human beings. There’s simply no way that the president’s attempted assassination of Comey’s character can fail to color Mueller’s opinion of Trump’s credibility and stature.
A caveat: Trump’s status as president probably protects him from criminal prosecution while he’s in office. And impeachment, the constitutionally enshrined method for removing a president, isn’t likely as long as Republicans control Congress.
But let’s imagine Mueller develops evidence of wrongdoing by Trump. Let’s further imagine that after due deliberation, Mueller issues a report, say, next year. That report could come just in time to help shape the 2018 elections and the chances that a potential Democratic-controlled Congress does take a swing at impeachment, using the report as its guide.
The president may not be thinking about this possibility, but his lawyers should be.