Below is my column in the Hill newspaper on the changes to the Trump legal team, including the departure of John Dowd who was the lead counsel in dealing with the Special Counsel investigation. While it is still not clear what role Joe diGenova will play, there is concern that Trump is considering a more combative approach. Adding more lawyers does not necessarily translate to strengthening a case. Indeed, if you add lawyers used to being lead counsels, the result can be confusion and conflicts in getting them to work together. What Trump needs is greater control and continuity as he enters the most risky stage of the Special Counsel investigation.
Here is the column:
John Dowd’s resignation as personal counsel to President Donald Trump sent shivers across Capitol Hill today. The reaction was not necessarily due to faith in Dowd but, rather, fear of the unknown. Dowd was known as someone who favored a cooperative posture toward special counsel Robert Mueller (though he was reportedly leery of Trump sitting down for an interview).
The combination of Dowd’s resignation and the addition of attorney Joseph E. diGenova is taken as a sign of a more confrontational, combative approach by Trump. If true, things could get demonstrably worse for the president. The greatest danger of a scorched-earth approach is when you are standing on that earth at the time.
Dowd’s resignation alone should not necessarily come as much of a surprise. Dowd has had his share of serious missteps, as have some of his former colleagues. Dowd recently issued a statement in the president’s name, calling for an end to the Mueller investigation. He was then corrected publicly and had to issue an embarrassing statement that he was speaking only for himself. It is not clear if the original statement was issued at Trump’s direction or with his approval. However, it does suggest an obvious lack of communication and trust in the attorney-client relationship.
This is not the first such confusion over who Dowd was speaking for in the litigation. Previously, there was an outcry after the president sent out a tweet responding to the plea agreement by former national security adviser Michael Flynn: “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!” Since Flynn was “fired” on Feb. 13, 2017, it was viewed as confirmation that the president knew of Flynn lying to the FBI before he reportedly asked then-FBI Director James Comey to go easy on Flynn. (Trump denied ever asking Comey to drop the investigation against Flynn.) Dowd later fell on a knife publicly and said he wrote those words, insisting that he was clumsy in using social media.
Dowd was involved in an equally clumsy controversy at a lunch with Trump personal lawyer Ty Cobb. A New York Times reporter sitting at the next table heard them complain about White House counsel Don McGahn withholding in a White House safe “a couple documents” in the investigation.
Other Trump lawyers have faced the same missteps, in addition to Cobb. Trump personal counsel Jay Sekulow was criticized for going on the air to insist that the president “didn’t sign off” on Donald Trump Jr.’s misleading statement about his meeting in Trump Tower with Russian representatives; it turned out that Trump dictated the statement on Air Force One.
CNN and other networks have unfairly characterized diGenova as a “television lawyer.” He is one of the most accomplished, skilled lawyers in the city, including prior service as the U.S. Attorney for the District of Columbia. He also is someone who has denounced the Mueller investigation as an effort to frame Trump.
The greatest concern is that Trump may be yielding to his own inclination for full-contact litigation at an extremely precarious time. Trump was influenced in his view of lawyers by his interaction and representation by Roy Cohn in New York. Cohn remains a dark figure among lawyers; he was the key aide to Sen. Joe McCarthy (R-Wis.) during his 1950s anti-American investigations of writers, actors, political dissidents and government figures as alleged communist spies. Cohn was later accused of a variety of unethical and criminal acts in threatening witnesses and other parties; he was disbarred for professional misconduct, including perjury and witness-tampering.
Despite that infamous reputation, Trump appears to still view Cohn favorably. In March 2016, Trump reportedly asked in frustration, “Where’s my Roy Cohn?” Eventually, Trump seemed to find a replacement for Cohn in the representation of Michael Cohen; Cohen has been repeatedly accused of threatening and bullying anyone who stood against Trump. Cohen has caused more harm than good for Trump in scandals like the one surrounding Trump’s alleged affair with porn star Stormy Daniels.
Cohn may have left an even deeper impression than simply his style of lawyering. Cohn once said, “I bring out the worst in my enemies and that’s how I get them to defeat themselves.” Trump has shown the same ability and inclination; the latest example was former Vice President Joe Biden’s juvenile taunt that he would beat down Trump in a fight. Comey leaking FBI memos after being fired and then attacking Trump on Twitter is another example.
However, there is a difference between litigation styles in New York and D.C. It is not always easy to make the transition like a southpaw boxer learning to hit with your right hand.
Trump needs to shake any lingering lessons from Roy Cohn, who once said, “I don’t write polite letters. I don’t like to plea-bargain. I like to fight.” In the end, that style did not pan out for Cohn any more than it did for his clients: He died in 1986 as a disbarred lawyer owing the IRS millions in unpaid taxes. And Robert Mueller is not the type of lawyer who will respond well to aggression. It is hard to spook a guy with a desk full of criminal subpoenas.
Trump has some good D.C. lawyers, including diGenova, but no lawyer is better than the case or the client. The investigation is now in its critical stage, and Trump needs more finesse than another fight.