It’s essential for President Trump to hire personal lawyers now that a special counsel has been named to lead the investigation into possible ties between his campaign and Russia, legal experts say.
The legal situation facing Trump grew more serious after it was revealed that ousted FBI Director James Comey kept notes about his conversations with Trump — notes that Democrats say could be used to build a case for obstruction of justice.
Trump is reportedly close to picking a legal team to handle the sprawling investigation, which is now being led by former FBI Director Robert Mueller.
Here are the answers to five questions about the hiring of an outside counsel and how it will affect the White House.
Why does the president need an outside lawyer?
The White House counsel represents the office of the president, not the man himself, so previous presidents have brought in their own lawyers when their personal actions have been the subject of investigations.
In addition, anything that happened during the campaign could also fall outside the scope of the White House counsel’s office.
Jack Quinn, a longtime Washington lobbyist who served as former President Bill ClintonWilliam (Bill) Jefferson ClintonBusiness coalition aims to provide jobs to Afghan refugees Biden nominates ex-State Department official as Export-Import Bank leader Obamas, Bushes and Clintons joining new effort to help Afghan refugees MORE’s White House counsel, said Trump must seek the help of an outside lawyer if he wants to protect his own interests.
“President Trump really needs to do this soon,” Quinn said. “It’s important you keep these things separate and that he be represented in his personal capacity by lawyers who can sort through these issues in matters other than those related to his official duties.”
David Kendall was hired in 1993 to represent Bill and Hillary ClintonHillary Diane Rodham ClintonClinton lawyer's indictment reveals 'bag of tricks' Attorney charged in Durham investigation pleads not guilty Attorney indicted on charge of lying to FBI as part of Durham investigation MORE in a Justice Department probe into their holdings in the Whitewater real estate venture, and later represented Bill Clinton during impeachment proceedings. Clinton also hired Bob Bennett to represent him in a civil sexual harassment suit brought by Paula Jones.
What are the limitations of the White House counsel?
Under a legal precedent set during the Clinton investigation, some of Trump’s communications with his White House lawyers might not be protected by attorney-client privilege. That means only Trump’s personal attorney could give him wide-ranging legal advice without it becoming known to investigators or the public.
“President Trump won't be able to protect confidentiality if he doesn’t seek a private attorney,” said Andy Wright, a professor at Savannah Law School and former associate counsel to former President Barack ObamaBarack Hussein ObamaOur remote warfare counterterrorism strategy is more risk than reward Clinton lawyer's indictment reveals 'bag of tricks' Chelsea Manning tests positive for COVID-19 MORE.
The District of Columbia Circuit Court of Appeals decided in 1998 that White House deputy counsel Bruce Lindsey could not assert attorney-client privilege to avoid testifying before a grand jury investigating Clinton.
The communications that White House lawyers have with Trump in his daily professional capacity would likely be privileged. But those attorneys could face problems if they are asked to defend the president’s personal actions as part of the Russia probe.
“His use of government attorneys in a personal defense related to a criminal investigation could transform them into instruments of obstruction of justice,” said Wright. “That could amount to an independent abuse of power.”
The hiring of an outside counsel could also relieve the workload for White House counsel Don McGahn, whose office is burdened with its normal duties, including time-consuming tasks like vetting executive actions and administration hires.
Plus, McGahn himself has been caught up in the controversy due to former acting Attorney General Sally Yates’s warning to him that then-national security adviser Michael Flynn could be compromised by the Russians.
Can the White House counsel still be involved in the Russia investigation?
Yes. The counsel’s office would likely be tasked with responding to subpoenas of White House records or to raise claims of executive privilege, Wright said.
For example, the White House could attempt to assert privilege over deliberations with Trump’s advisers related to congressional inquiries into Russia.
It’s unclear whether those claims would succeed. The Supreme Court in 1974 denied President Richard Nixon’s privilege claims over secret recordings of White House conversations that proved crucial in the Watergate probe.
What are the challenges in representing Trump?
Trump’s penchant for tweeting and speaking publicly about the investigation could cause heartburn for any lawyer representing him.
Some legal experts say Trump’s decision to tweet about his talks with Comey, for example, could hurt the White House’s ability to claim privilege to protect them from investigators.
Trump’s decision to write in his termination letter to Comey that he had reassured Trump that he is not personally under investigation also makes it look like he has something to hide, critics say.
“One of the things private counsel should put at the top of their priority list is to get the president to stop talking about the investigation,” Wright said. “The more said, the more threads that are being left for prosecutors.”
Quinn said Trump needs an attorney with a wealth of Washington experience to reassure him and help him navigate the choppy waters.
“It is just abundantly clear he needs the guidance of people who are familiar with investigations of this kind and the protocols that attend to how the president deals with law enforcement and the intelligence community,” he said.
Among the candidates are former Trump attorney Marc Kasowitz and Ted Olson, who served as solicitor general under President George W. Bush, according to The Washington Post.
Who pays the legal fees?
Trump would have to reach into his own pocket to pay for his private lawyers.
That won’t pose much of a problem for the former business mogul, whose net worth Forbes estimates is $3.5 billion.
White House staffers who need to hire lawyers to represent them in the investigation, however, could shoulder a heavy financial burden.
Aides are not permitted to seek reimbursement for that type of legal representation, and ethics guidance surrounding legal defense funds is murky.