Former federal prosecutor shares a key point about June and July of last year when Trump’s staff was trying their best to keep Trump from destroying himself and the limits on Ty Cobb’s cooperation strategy. Give this a read. Very important perspective.
I wanted to share some thoughts on the President’s current legal strategy and the shift from Kasowitz to Cobb/Dowd, which I think is fascinating as you’ve discussed in your post this morning.
As an initial matter, Cobb’s cooperative strategy is absolutely the right one–if he had a normal, cooperative client. Cobb is a pro (or at least as much of a pro as you can find in this clown show of a White House) and seems to understand that the best approach with prosecutors pre-indictment is to adopt a cooperative stance. Defense lawyers do this to make their clients appear to be helpful, transparent and credible, with nothing to hide. You don’t fight them on the small stuff and you try to assist them in their truth-seeking mission. You want to convey the message that your client wants to get to the bottom of this just as much as they do and will do whatever he or she can to help. It is the prosecutors who hold your client’s fate in their hands, so antagonizing them and appearing uncooperative is generally a bad idea. It pisses them off and makes your client look guilty. So you don’t go over their heads. You don’t criticize them in the media. You don’t attack them for political bias. And your client must never, ever discuss the case at all other than with his lawyers. If he needs to vent, he does it with you in a privileged setting. That’s criminal defense 101.
The problem, of course, is that there is a serious misalignment here between the legal strategy and the predisposition and conduct of this client. Mueller and his team may very well appreciate Cobb’s less antagonistic approach and view him as a credible interlocutor. I’m sure they appreciate getting a bunch of internal White House documents without a fight. But has this approach fundamentally changed in any way their view of Trump himself? Do they view him as a credible guy who wants to cooperate and help them get to the bottom of the Russia facts? Do they see him as a man who behaves like someone with nothing to hide? Of course not. A cooperative strategy is ineffective if it appears to only be driven by the lawyers, not the client. And I think people underestimate just how gravely prosecutors like Mueller and career FBI agents view efforts to mess with their investigations. It’s deeply offensive to them–they feel like they must take strong action to deter such conduct to protect the integrity of the justice system. They can’t and won’t let obstruction go.
So when you’re stuck with a fundamentally uncooperative client who repeatedly lies, attacks the investigation, uses surrogates to try to discredit the FBI, fires the FBI Director because of the “Russia thing,” attacks his Attorney General for not protecting him from the investigation, and orders the prosecutor investigating him fired based on bogus conflict of interest allegations, you might as well go back to the Kasowitz scorched-earth approach and take your chances in Congress. Whatever you want to say about Kasowitz, at least he knew his client.
So congratulations, Ty, your credibility is intact. But your client is still an a**hole who can’t help himself from obstructing justice and seems to have a lot to hide about