Every criminal lawyer has been confronted, at one time or another, and asked, “How can you represent that detestable individual?” The most transparent of us would likely say, in the vein of famed bank robber Willie Sutton when asked why he robbed banks: “Because that’s where the money is!”
The more high-minded, sanctimonious or nuanced will roll out the lawyer’s “duty to defend” — the Constitution’s guaranty of the right to counsel for anyone entangled in the criminal process, however despicable they, or their ideas, might be, even to the lawyer.
Still, however wedded the attorney as a professional might be to the client’s cause – meaning, however zealous he might be in carrying out his defense function, even if with gross, inward misgivings, according to the Rules of Professional Conduct in most jurisdictions his representation of the client “does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”
If the lawyer will be required by the client to pursue “tactical” measures that he finds offensive, he should probably refuse the engagement, for once engaged, he will be morally bound to keep his promises to his client. In any event, the attorney must pursue the “objectives” – that is, the litigation goals – the client wishes.
All of which brings us to President Trump and John Dowd, Trump’s lead, personal lawyer in the Russia investigation. By all accounts, Dowd is a skilled, experienced criminal lawyer who has zealously represented clients over a long career.
He now represents a client who believes (or simply complains) that he is the repeated victim of “fake news.” Trump is a client who has publicly insisted there is basically moral equivalence between the Neo-Nazi groups marching in Charlottesville and, what Trump has termed, the “alt-left”, i.e., the protesters who challenged those marching.
With that background, Dowd transmitted to conservative journalists, government officials and friends an email with the subject line “The Information that Validates President Trump on Charlottesville” – sent to him, by the way, by a conspiracy theorist who believes the FBI has been infiltrated by Islamic terrorists – which repeated secessionist Civil War propaganda and alleged that Black Lives Matter is permeated by terrorists.
These may be the views of Trump’s base, but the real question – is this what the president’s lawyer should be doing?
More than 25 years ago in Nevada, Dominic Gentile, an attorney, held a press conference the day after his client was indicted, and made statements that may potentially have prejudiced an eventual jury (in fact, the client was ultimately acquitted). The U.S. Supreme Court unambiguously stated, during the course of its decision, that “[a]n attorney’s duties do not begin inside the courtroom door . . . . A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.”
Indeed, an attorney should employ these strategies to fend off an indictment – presumably Dowd’s intention of ginning up public opinion in a particular direction on behalf of his client-in-chief.
Still, has Dowd basically become what, in the ‘60’s, one would have called a “movement lawyer” – that is, a lawyer entirely engaged not only with the client, but to the philosophy or agenda the client espouses, in this case unrelated to the case on which he is representing the client?
In other words, Dowd, the attorney, seems not simply to be an attorney articulating his client’s innocence (or at least non-guilt), but he appears to be actually “joining with” the president to publicize why the client’s political beliefs are valid. If that were indeed his strategy, it would seem he hopes to establish that Trump is a “victim” of a totally biased media trying to push Trump into the waiting arms of special counsel Mueller, or a potentially impeachment-happy Congress — one that might begin to see Trump’s Charlottesville remarks as the last straw.
Now, this can be a very effective, and important, strategy – the lawyer is putting his own reputation on the line as a “true believer” in his client’s position. But Dowd is no movement lawyer and, if you are going to fake it, you better pick your topics carefully and hit a bases-loaded-out-of-the-park home run. Otherwise you – as lawyer – will likely do nothing other than hurt your own credibility, and most importantly, also your client’s.
This is particularly so given that Dowd, in forwarding the email, did not address in any way the Russia investigation, Mueller or any act for which Trump may, theoretically, eventually be indicted. Instead, he circulated an email on a completely unrelated topic, and declared, in effect, “My client is right and must be vindicated for his beliefs.”
Trump’s base is Trump’s base, and the base will likely largely remain. So can a seasoned lawyer, like Dowd, believe that what he is doing will move those who do not agree with Trump to his side?
If Dowd wants to help his client, emailing that “there is literally no difference between” Robert E. Lee and George Washington seems not the way to go. That seems more likely to make Dowd himself sound like a hired hack, or himself a racist – both characterizations for which there appears to be no support whatsoever.
But at bottom, it will undermine counsel’s credibility, and thus his ability to defend his client, if the allegations against the president come into full view, and if actual charges are considered or brought against him either by the Congress or the grand jury.
Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is 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.
The views expressed by contributors are their own and are not the views of The Hill.
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