Below is my column in USA Today on the ethical and practical implications of the controversial tweet sent out by Trump counsel John Dowd. In my view, Dowd should now remove himself from the litigation. Notably, the failure to remove or fail Dowd will likely fuel theories that he is covering for Trump. If Trump did not know that Flynn had lied to the FBI before speaking with Comey, the Dowd tweet would usually result in a quick and rather angry response to a lawyer compromising his client in this fashion. However, various media sources are reporting that White House Counsel Don McGahn did inform Trump that Flynn likely misled the FBI in his interview before Trump spoke with Comey. Whatever the truth of the matter, the Dowd tweet could not be worse in its timing and content.
Here is the column:
Trump personal lawyer John Dowd is facing the worst possible fate of a Beltway barrister. He is about to become a noun, verb and adjective. It is a lonesome position that Robert Bork found himself 30 years ago when blocked for the Supreme Court. Now nominees are often evaluated according to whether they are “Borkable” or likely “to be borked.” A Dowd may soon be the operative term for a legal action that is so self-destructive and stupid as to compromise not only a client but yourself. More specifically, it could be simply the shorthand for “death by tweet.”
Dowd’s predicament arose after Washington was set alight by what may be the single most moronic tweet in the checkered tweet history of the administration. The president sent out a tweet responding former national security adviser Michael Flynn’s plea agreement by saying “I had to fire General Flynn because he lied to the vice president and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”
The three words “and the FBI” could constitute an admission against interest for the president in the investigation of possible obstruction of justice. Flynn was “fired” on Feb. 13, 2017. That was the day before Trump reportedly asked then FBI Director James Comey to ask him to go easy on Flynn. (Trump has denied that he ever asked Comey to drop the investigation against Flynn.)
With the media in full frenzy, Dowd came forward to fall on a sword. He claimed that the words were his alone and he was “sloppy” in referring to knowledge of lying to the FBI. However, this week media is reporting that White House Counsel Don McGahn told Trump before Flynn was fired that he believed Flynn had misled the FBI.
It is hard to imagine how Dowd could ethically continue to perform his duties as an attorney after compromising himself and his client so thoroughly. Dowd is now an obvious potential witness for special counsel Robert Mueller. There is no reason why Mueller should accept his claim that Trump did not approve these words or that the admission did not reflect Trump’s knowledge at the time of the Flynn firing in February.
This was the wrong time and the wrong prosecutor for Dowd to push the envelope of attorney-client privilege. Mueller has already shown a troubling and dismissive view of legal privilege. He was accused of trying unsuccessfully to nail a defense lawyer by taping an attorney-client meeting in Boston when he was U.S. Attorney. More recently, Mueller effectively turned Paul Manafort’s former lawyer, Melissa Laurenza, into a witness against him; he got a court order for her testimony under the “crime-fraud exception.”
Since Mueller is investigating obstruction of justice, Dowd’s testimony would be easier to acquire then Laurenza’s. Moreover, it is not clear what role Dowd was performing as tweet muse. Lawyers are under various ethical limitations in discussing pending cases or investigations or witnesses. It is not clear how a lawyer can issue statements under the name of the client without approval or a clear understanding from the client. This was not a tweet from counsel speaking on behalf of Trump. It was speaking as Trump.
Writing under the name of your client (without his sign-off on the statement) raises a novel but no less troubling concern, particularly when you are attacking a potential witness against your client. Dowd seemed to blur the line of counsel with being a type of public relations flack in authoring tweets under Trump’s name. While it is always dangerous to combine the roles of lawyer and flack, it becomes intolerable when you add the third role as potential witness.
Calling this “sloppy” drafting is like calling the Titanic “incautious navigation.” Dowd seriously undermined the position of Trump by clearing away any serious barrier for Mueller to demand information on his communications with Trump.
Ironically, Trump’s various personal lawyers were brought into the case because White House Counsel McGahn could not refuse to answer questions from Mueller under long-established case law. Private counsel could allow Trump the protections of attorney-client privilege.
The Trump legal team however has been honoring the privilege primarily in the breach and has seemed to invite its own subpoenas. Not long ago, Trump personal lawyer Ty Cobb revealed in a loud conversation with Dowd that McGahn was withholding “acoupledocuments” in the investigation in the White House safe. He made the statement at a restaurant next to a New York Times reporter eating lunch.
Trump personal counsel Jay Sekulow also became a possible witness when he went on the air to insist that the president “didn’t sign off” on Donald Trump Jr.’s misleading statement on the now infamous meeting in Trump Tower with Russians promising dirt on Hillary Clinton. It turned out that Trump dictated the statement, according to White House sources.
This gives Mueller a target-rich environment in an area that he has shown little hesitation to hunt previously: attorney-client communications.
Dowd has had an accomplished career and has garnered well-deserved praise for his legal abilities. However, he now has no good option. If he issued an incriminating statement under Trump’s name without his approval, he is compromised as counsel. If he lied about Trump not approving the language, he could be disbarred as counsel. In either case, he faces a serious risk of being a witness. In other words, he pulled a Dowd. And no one understands that better than Dowd himself.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley.