The Myth Of Conflict-Free Counsel and The Nesting Dolls Of The Russian Investigation

In both politics and law, ethics demand the performance of duties with a clarity of purpose: for the sole benefit of either the public or the client. It is a standard that is often honored in the breach in Washington where people and their alliances are rarely fully disclosed. In some ways, John Dowd, the embattled Trump counsel, is the ultimate example of these conflicts. In a little known case, a court even found that, as a matter of law, Dowd was not required to give a criminal client conflict-free representation.

Unfortunately, that standard appears to govern other lawyers on both sides of the special counsel’s investigation into Russian meddling in the 2016 presidential election. The Russia investigation is a case study of the layers of conflicts that often characterize lawyers in Washington like matryoshka, which are those Russian “nesting dolls” that contain smaller and smaller figures inside.

In a recent controversy, Dowd succeeded in compromising his client in a single tweet with a message under Trump’s name that appeared to admit that the president knew Flynn lied to the FBI before being fired and before Trump allegedly asked FBI Director James Comey to let Flynn go. Dowd has not recused himself from further representation and is continuing with the incompatible roles of both counsel and a potential witness.For Dowd, such conflict controversies are not new. In 1990, the U.S. Court of Appeals for the Fourth Circuit handed down a decision in Reckmeyer v. United States in which Dowd’s representational practices were prominently featured. Dowd represented Robert Reckmeyer, a man who pleaded guilty to multiple counts of a drug conspiracy involving the distribution of marijuana and hashish. Reckmeyer later alleged that Dowd demanded over $500,000, money that Reckmeyer said Dowd knew was coming from illegal sources and actively worked to conceal the sources. He alleged that, after acquiring the money through various surreptitious means, Dowd then pushed him to plead guilty.

Reckmeyer wanted an evidentiary hearing to prove these allegations. For the purposes of stating a claim to such a hearing, the trial court ruled that Reckmeyer had properly alleged that Dowd had entangled himself in the conduct charged against Reckmeyer and that Dowd “would choose a course of action to suit his own interests in avoiding criminal liability over a course of action most favorable to his client.” However, the court dismissed the appeal because, if true, Reckmeyer “waived conflict-free representation” by agreeing to allegedly funnel tainted funds to Dowd. The appellate court agreed that, even if Reckmeyer proved all of these facts, he retained Dowd and no one would have confused Dowd with a lawyer solely acting in his client’s interest under these circumstances.

The court wrote, “These facts plainly show that Reckmeyer must have known that Dowd was self-interested and that his self-interest could run counter to Reckmeyer’s. They also show that knowing all this, Reckmeyer nevertheless decided to retain Dowd as counsel. Though Dowd obviously never explained that his interests were in conflict with Reckmeyer’s in a way that might affect his representation, the only reasonable inference that can be drawn in logic from the facts alleged is that Reckmeyer must have realized that Dowd’s private interests would best be served by a quick and summary disposition that minimized any risk of inquiry into his own criminal culpability (if the facts be as alleged). We need infer to Reckmeyer no sophisticated understanding of the law or legal tactics nor any special prescience about human nature to hold that he had to know that Dowd’s private interest would be best served by a plea bargain, whether or not that best served Reckmeyer’s.”

Since the court held that Reckmeyer had “knowingly and voluntarily waived his right to conflict-free representation,” an evidentiary hearing was denied. A grand jury did not indict Dowd, and the D.C. ethics bar did not take any disciplinary action. Many in Washington seem to follow the Reckmeyer standard that there is no guarantee to conflict-free lawyers in some cases involving Robert Mueller, Rod Rosenstein, Ty Cobb, Don McGahn and Andrew Weissmann.

When Deputy Attorney General Rod Rosenstein decided to appoint a special counsel, I agreed with his logic after the firing of James Comey. However, his choice of Robert Mueller was baffling. Mueller has had a longstanding and close relationship with Comey. Indeed, Mueller and Comey became heroes at the FBI and the Justice Department in a historical confrontation that would come to define both men.

In March 2004, Comey, who was deputy attorney general, went to the hospital bed of Attorney General John Ashcroft to keep him from relenting to demands from White House counsel Alberto Gonzales and others on the reauthorization of an unconstitutional domestic-surveillance program. Mueller was the man who ordered the security detail protecting Ashcroft to not allow White House staff to eject Comey from Ashcroft’s hospital room.

Worse yet, their cross-pollinated history continued. The White House has said that Mueller interviewed with Trump for the FBI position to replace Comey the day before he was made special counsel. If this conversation occurred, Trump may have explained why he fired Comey and what he was looking for in his replacement. With obstruction a focus of the investigation, that makes Mueller a possible witness in his own investigation.

Rod Rosenstein is not only Mueller’s boss but a possible Mueller witness. If he isn’t, he should be. Rosenstein recommended that Comey be fired. He was involved in discussions before and after the firing. He was also reportedly upset with the White House in characterizing his memo as the reason for the firing and had communications about the accounts being given by White House staff. Yet, Mueller is still going to Rosenstein for funds and any approval on new areas for the expansion of the investigation.

While conflicts with the highest officials at the Justice Department have not been publicly addressed, lower-level figures have been demoted or reassigned. For example, Peter Strzok, the No. 2 official in the FBI’s counterintelligence division who played a key role in the Clinton and Trump investigations, was removed for anti-Trump, pro-Clinton statements. Another high-ranking Justice Department officer, Associate Deputy Attorney General Bruce Ohr, was demoted, reportedly due to contacts with the author of the controversial anti-Trump dossier by former British spy Christopher Steele.

Yet, other conflicted lawyers remain in place. In addition to Dowd, Mueller and Rosenstein, Trump counsel Ty Cobb stands as a possible witness over a bizarre disclosure made in a loud conversation with Dowd at a restaurant, overheard by a reporter. Cobb suggested that White House Counsel Don McGahn, who has already been interviewed in the investigation, was withholding material documents in his safe.

Andrew Weissmann, one of Mueller’s top aides, remains in place despite the disclosure that he sent congratulations to a former acting attorney general who defied Trump over the travel ban and ordered the entire Justice Department to refuse to help the president defend the order, a move widely viewed as improper and which, legitimately, led to her termination.

To paraphrase the Reckmeyer case, none of us “knowingly and voluntarily waived” our right to “conflict-free” investigations. With millions of dollars already spent by Mueller and the legitimacy of the government at issue, we have a right to expect a conflict-free process from all parties. That is why, before we reach any conclusions, we should first publicly resolve any conflicts.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.