Is Trump hiding behind his lawyers? And will that work?
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The first rule of crisis management for public figures is this: If damaging facts will come out against you, get them out first.

That way, as a pure public relations matter, you’ll be seen as forthcoming and transparent, and your side can spin that transparency to present your side’s conduct as far less damaging (or even as a plus).

This is true whether you release the information, or you have your representative do it. In some cases, it is almost easy — if the disclosure consists of a mere release of documents, the documents are what they are.

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But suppose your side’s release is oral: “I was never at the meeting”; “I didn’t receive a dime for making the introduction.”

 

How risky is a public disclosure if its claims, which are directly relevant to a potential criminal investigation of you, turn out to be misleading?

Or downright untruthful? More pertinent here, will you suffer less prejudice if your spokesman made the statement on your behalf while you personally remain silent?

And does it make a difference that your spokesman is your attorney?

Can that lend gravitas to the disclosure and, if so, just how does that play?

Of course, the strategy of using a spokesperson relates to any public figure who wants to stay somewhat below the radar. However, a president who is frequently willing to “go public” with his version of the facts that might relate to an investigation of him is far better off — legally speaking — having his press representatives speak for him, while he remains silent.

If a spokesman makes a statement that turns out to be false (even if unintentionally), the president’s “distance” from the statement affords him plausible deniability: “She wasn’t authorized”; “She didn’t know the facts.”

Not only have we seen that scenario play out, we have seen tweets from the president that directly contradict statements made by his press people, particularly on the important issue of the investigation of President Trump’s campaign (“Russiagate”).

But, now, President Trump increasingly has his lawyers purporting to speak on his behalf.

Do their statements afford the president the same level of deniability if the statements turn out to be false?

What about if they turn out to be truthful, and harmful to the President or his campaign (read, “family”) by virtue of their truthfulness?

Meaning, if the attorney purports to speak for the president, can a prosecutor or a congressional committee use the attorney’s statements against him when seeking to bring charges against the president?

The answer is surprisingly simple: if the president specifically authorized his attorney to make a statement on his behalf to the public or, for that matter, to the prosecutor, the statement is called a “representative admission” — an exception to the hearsay rule that makes it admissible against the President.

True, there could be an admission if a press secretary speaks, but it is easier for a press person to wiggle out of a statement than for a lawyer.

Remember, lawyers are not just a voice, they are an advisor – or at least should be.

Now, one might think that a statement by the president that denies a pertinent fact can’t be harmful. But assume, hypothetically, the following statement: “I didn’t know my son was meeting with a Russian spy.”

But further assume — again hypothetically — that the son did meet with a Russian spy and a prosecutor can prove that the president knew it contemporaneously, making the denial false. Is that denial harmful?

Yes, a prosecutor can offer the falsity as proof of “consciousness of guilt.”

Meaning, the prosecutor will use it to show that the president denied knowledge because he knew that it was “bad” for his son to have had the meeting, and likewise “bad” that Mr. Trump knew it.

So, suppose that instead of a denial by the president, the attorney made the denial, ostensibly on the president’s behalf.

Admittedly, it will be somewhat hard for a prosecutor to establish that the attorney’s public denial was actually authorized by the president – after all, the communication would presumably be protected by the attorney-client privilege.

Still, the president and his lawyer(s) don’t want the predicament of the attorney having to dial back his public statement and say that he spoke without having first pinned down the president on the true facts.

This would be a questionable scenario for a lawyer who hardly wants to present himself, even if doing so to protect the “Leader of the Free World,” as someone who shot from the hip, in an effort to help his client through the current news cycle intact.

Nor would the president and his counsel want to litigate a prosecutor’s likely claim that the statement was authorized, pitting lawyer against client.

And as a lawyer — put the president to the side briefly — does he really want to face a potential ethical violation by making statements on behalf of a client if he did not first vet the probity of those statements?

Unquestionably, the phrase “mouthpiece,” when applied to lawyers, is ad hominem. There’s likewise no question that it is preferable for a client under investigation — whether a president or not — to have the “mouthpiece” speak for him when times get rough.

When questioned, the lawyer can always retreat – “I do not have that information.” But a lawyer or any representative, for that matter, shouldn’t want to be the voice of “misstatements” or “unauthorized statements,” something we see with increasing regularity.

Now, press people may come and go. But we should have the right to expect more from attorneys – especially if they are engaged to get the message out or, more likely, put the current fire out.

The lawyer, unlike the lay spokesman, has an ethical responsibility to the public and to himself to speak the truth, and to resist speaking when he isn’t confident in the truth of what he’s being asked to say.

Let’s not forget, an attorney also has an ethical duty to his client; he must make sure the client recognizes the risks a falsity may later present, even if the client might currently be less interested in publicizing the truth, and rather wants to hide behind a silver-tongued professional who simply sounds truthful.

The lawyer’s role is to ensure that their clients look down the road, where that decision to hide the truth may eventually lead.

Lawyers are professionals — the potential for being disciplined for their conduct in trying to help (or even hurting) the client isn’t the only thing that should keep them on the straight and narrow.

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. An adjunct professor at Fordham Law School, he regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications and is the author of "Broken Scales: Reflections on Injustice." Dale J. Degenshein of Stroock assisted in preparing this article and "Broken Scales."


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