White House press secretary Sean Spicer announced Wednesday in a off-camera briefing that he will no longer answer any questions on the federal investigation into Russian election interference and alleged collusion with the Trump campaign, and will instead refer everything to President Donald Trump’s private attorney Marc Kasowitz.
Both the hiring of private counsel and the referral of questions to Kasowitz signal the beginning of a whole new chapter in the President’s ongoing legal saga—with some echoes of the tension between the private lawyers and White House counsel who defended President Bill Clinton when he came under multiple investigations.
Former White House attorneys, special independent counsels and presidential advisers who have handled both sides of those past federal investigations tell TPM to expect sharp internal divisions, a journey into uncharted legal territory and an official information blackout. The attorneys said both Kasowitz and special counsel Robert Mueller—who is leading the Russia investigation at the FBI—will be loath to give updates and will do their best to crack down on leaks.
Adam Goldberg, White House special associate counsel from 1996-1999, said that if Kasowitz follows the precedent set by Clinton’s private attorney, David Kendall, many questions may go unanswered in the months to come.
“There was just a shutdown of information,” recalled Goldberg. “For close to a year, the President didn’t go out and answer questions, he didn’t admit what happened or talk about it. It made it very, very difficult for us to communicate with the public. We were cut off and blindsided by news events. I think that was part of why he got impeached. He didn’t control the message.”
Several attorneys who defended Clinton amid multiple federal investigations and an impeachment trial—and one lawyer who investigated him—emphasized to TPM that conflict inevitably ensues when a president has both White House counsel and private lawyers giving legal advice.
“The outside counsel’s job is to make sure the president doesn’t get indicted and if he does, that he doesn’t go to jail. The job is defending him personally,” explained Goldberg, who now works at the law firm Davis Goldberg & Galper. “The White House counsel’s job is to worry about the institution of the presidency. They are going to give advice that is best for the office, not necessarily the man.”
Lanny Davis, White House special counsel in charge of political and legal controversies during the Clinton impeachment, said the tension between the two camps usually stems from how much information to disclose to investigators, the press and the public.
“The outside counsel will strongly recommend to the president to say as little as he possibly can, to not talk, to not answer questions, and to avoid the media,” said Davis, who like Goldberg is now a partner at Davis Goldberg & Galper and co-founder ofthe strategic communications firm Trident DMG. “But that is the worst possible advice for the presidency as an institution. He was elected by the American people and has the obligation to be transparent, to be accessible. But it’s the right advice for the person Donald Trump to avoid, let’s say, vulnerability to impeachment or even criminal prosecution. Those two forces are going to be in conflict.”
Going forward, requests and subpoenas for official White House records will likely go to White House counsel Don McGahn, while subpoenas for Trump’s pre-inauguration personal records—his cell phone calls before he was inaugurated, his personal diaries, anything from the campaign and transition—will go to Kasowitz, Trump’s private attorney. The two camps may have completely different sets of information and completely different strategies for guarding that information.
“Attorney-client privilege can be much more protective than executive privilege, so it wouldn’t surprise me to learn that Trump wasn’t sharing as much with his White House counsel as with his private counsel,” Goldberg said. “I could see the special counsel trying harder to probe executive privilege than attorney-client privilege.”
Both camps, however, can mount a vigorous defense and make it extremely difficult for the FBI or congressional investigators to obtain documents and testimony. Robert Ray, who succeeded Ken Starr as special independent counsel from 1999-2002 in the protracted investigation of various Clinton scandals, from Whitewater to Monica Lewinsky, explained to TPM what a president’s team can legally do to drag its feet.
“Short of potential obstruction of justice, [Bill Clinton’s attorneys] were inclined to set up every roadblock possible to make the independent counsel’s job difficult and drag out the investigation,” he said. “Practically every subpoena that was issued was challenged on grounds of jurisdiction, and every one of those motions had to be litigated.”
Ray said Trump’s counsel can employ this and other tactics to drag out the inquiry for months or even years.
“They can assert their Fifth Amendment privilege, which in many cases is appropriate to do,” he said. “And when document requests are made, they have to decide whether to assert executive privilege or attorney-client privilege, which then has to be litigated before a court.”
The current federal probe has a wide scope, encompassing questions of how exactly Russia interfered in the 2016 election, whether anyone in the Trump campaign colluded with them in that effort, and whether anyone in the Trump administration has attempted to obstruct those investigations. Everything from former national security adviser Mike Flynn’s Turkish and Russian income sources to meetings between Trump son-in-law Jared Kushner and a Russian banker is under scrutiny, potentially carrying the country into uncharted legal territory.
American courts have never resolved, for example, whether a president can be criminally indicted. Nixon was pardoned by his successor before the country could find out the answer and after the Watergate investigation sent several of his underlings to prison. Some legal experts argue that a president is immune from prosecution while in office, but not after he completes his term or is impeached. Others, including former Justice Department officials and scholars, disagree, saying the question remains open.
But regardless of the outcome of the probe, it will be a grueling experience for everyone involved.
“I wouldn’t wish an independent counsel investigation on my worst enemy,” said Ray. “It’s a terrible position to be in.”
Ray noted that like Clinton’s investigations, the current Russia investigation is taking place in “a hyper-partisan atmosphere,” with the President openly questioning the investigation’s motive and allegedly taking steps to undermine it. Ray, who was tasked with wrapping up the lengthy investigation spearheaded by Starr, emphasized the importance of the probe bringing the facts to light in a timely manner.
He warned that the public “won’t tolerate this dragging on for years and years,” but noted that the investigation could very easily take that long to conclude.