*Permission to reprint from her brilliant blog was generously granted by Teri Kanefield.
By Teri Kanefield
“Where’s my Roy Cohn?” Trump reportedly asked in early 2018.
Among other things, Roy Cohn was a mob lawyer. This is from NPR:
Cohn was a legendary and controversial attorney who pushed legal tactics to the limits for a dazzling array of clients — from senators to mobsters and high rollers in sports and entertainment.
Cohn was periodically in legal trouble himself and was disbarred in New York just weeks before he died in 1986. But his legacy lives on in the careers of others.
Trump met him in 1973 in a Manhattan nightclub. The two became friends, allies, and business associates. Some say Cohn was Trump’s mentor or even his surrogate father. This much is clear: Cohn was Trump’s model in the handling of public relationships and media warfare.
Cohn’s code was built on self-interest and loyalty; his style was all about intensity. If he was your lawyer, he was prepared to do anything for you; if he was your adversary, no holds were barred.
In March of 2018, Bob Bauer, NYU law professor and former White House Counsel under Barack Obama, wrote a piece for Lawfare called “The President and his Lawyers“ in which he observed that Trump didn’t look to his lawyers for legal advice, and in fact, often disregarded legal advice. Instead, he sent his lawyers to do his bidding.
It is, therefore, no surprise that Trump’s lawyers often end up in trouble. Michael Cohen, Trump’s longtime personal lawyer and fixer, pleaded guilty to committing crimes while representing Trump, and Rudy Giuliani had his law license suspended for lying in court about the election and was told he is a target in the Georgia election interference criminal investigation.
Each of these lawyers has been sanctioned for filing frivolous lawsuits on Trump’s behalf:
Now let’s have a look at the recent drama in Trump’s legal team.
May 17: Timothy Parlatore announced that he is leaving the legal team. He had been working on Trump’s defense in the stolen documents case.
May 20: Parlatore appeared on CNN and said he left because of “irreconcilable differences” with Boris Epshteyn, another lawyer who has been working as something akin to an in-house counsel for Trump, hiring lawyers and coordinating their efforts to defend Trump. (Parlatore said he still believed “very strongly” that the DOJ was “wrong” in how it was investigating this case. Specifically, he resented the fact that the DOJ was forcing Trump’s lawyers to testify.)
In that CNN TV interview, Parlatore said that Epshteyn hindered him and other lawyers from getting information to Trump, leaving the legal team at a disadvantage in dealing with the DOJ. This made representing Trump “much harder than it needed to be.”
Parlatore said, “Epshteyn did everything he could do to try to block us” and it’s “difficult enough fighting against DOJ.” but that when colleagues are “trying to undermine you, to block you,” that it made it “so I couldn’t do what I needed to do as a lawyer.”
A few things to note:
One explanation for the Epshtyen-Parlatore conflict is that Trump’s legal needs are in conflict with his political and public relations needs. Parlatore could be positioning himself as a defense lawyer trying to provide a competent defense while painting Epshtyen as the guy in charge of Trump’s public relations and political needs, basically saying, “I couldn’t defend Trump because Epshtyen was in the way.”
Last week, when comparing McVeigh’s attack on the Murrah Federal Building in Oklahoma City in 1995 to the January 6 attack on the Capitol, I wrote this:
Trump can’t stop “fighting” because if he does, he’ll be just another pathetic loser under indictment. If he keeps “fighting,” he remains a hero of the right-wing extremists
As with McVeigh, Trump’s political needs are at odds with his needs as a potential defendant. Trump can either behave like a normal potential defendant and try to get the best deal he can, or he can be a right-wing hero and hope that the extremists ultimately gain control. (He is probably also deluded enough to think he can win the next election on the theory that these indictments will fire up his supporters, who will see the 2024 election as the last chance to prevent “left-wing radicals” from seizing complete control. The fact that Trump has promised to pardon the convicted insurrectionists demonstrates that he does not see any of these prosecutions as a liability for his political future.)
If Trump stops “fighting” and behaves in ways that lessen his criminal liability, he will lose his chance to remain center-stage and retain his grip on the Republican Party, so don’t expect him to do it.
If you want an illustration of why Trump would put his political needs ahead of his legal needs, see this New Yorker cartoon:
(I’ve been saying for years that the criminal justice system cannot solve a political problem. A reader on Mastodon showed me that cartoon to illustrate my point.) In fact, an indictment or conviction may help Trump secure the Republican nomination.
See what Trump has done here? Anyone who is cool with Trump keeping sensitive government documents is implicitly agreeing that Trump is the True Leader who can do as he pleases.
“But wait!” you say. “He broke the law!’
In 2018, Michael Scherer writing for the Washington Post, noted that lawbreaking was no longer disqualifying in the Republican Party and had even become a “positive talking point.”
On my FAQ page, I have a partial list of the prominent Republicans in Trump’s circle who have been convicted or who pleaded guilty over the past 5 years, and I discuss why the modern Republican Party glorifies lawbreaking. In a nutshell, they believe that the administrative state put in place since the New Deal and Civil Rights movement is illegitimate and an unconstitutional exercise of federal power. They break the rules they don’t believe should be there. They want to return to a mythical time when white men could grab whatever they wanted. (See last week’s post and my general FAQ page for more.)
Violating his duties as a lawyer by betraying confidences from inside Trump’s legal team was not the most shocking (or interesting) thing that Parlatore did on his publicity tour: He also accused Epshteyn of criminal obstruction.
Before looking at this accusation, I want to show you what normal looks like. This is a true story:
“The client was charged with theft by the feds. He told his lawyer he had some receipts. He gave the ‘receipts’ to the lawyer. The lawyer didn’t double-check them and handed them to the feds. The feds figured out that they were fake and added 18 U.S. Code § 1001 (making false statements) and obstruction to the list of charges. The lawyer immediately withdrew from the representation.”
My former mentor and very experienced criminal defense lawyer Mark Reichel took over as his defense lawyer. The lawyer who withdrew most likely has no criminal liability. He probably should have checked the receipts, but not checking isn’t a crime. When he realized he had handed fake documents to the feds at the request of his client, he immediately withdrew from representing the client. How would you feel if someone involved you in a crime? That’s how most lawyers would feel at this point. Moreover, the lawyer who withdrew went from representing someone accused of a crime to a person who witnessed a potential crime. As a witness, he may be called to testify. If a lawyer testifies against a client, they are essentially adversaries, and a lawyer can’t represent his or her adversary because there is a clear conflict of interest.
During his TV publicity tour, Parlatore said Epshteyn tried to keep the team from conducting additional searches of Trump’s properties after the F.B.I. executed a search warrant at Mar-a-Lago. To get the full impact of what Parlatore is accusing Epshteyn of doing, I’ve placed this accusation in the chronology of the Stolen Documents case:
January 2022: Trump returned 15 boxes to the National Archives. Afterward, Trump asked one of his lawyers, Alex Cannon, to tell the National Archives that Trump had returned all materials requested by the agency, but Cannon declined because he was not sure the statement was true.
February 2022: Trump wanted to release a public statement saying he’d returned all the government documents, but people around him persuaded him not to do that. (They kept him from releasing what they knew or suspected might be a lie.)
On April 12, 2022, after the National Archives made clear it was having trouble retrieving documents that Trump had taken from the White House, Former White House counsel Pat Philbin, and John Eisenberg withdrew from representation. (This was a smart and prudent move.)
They were replaced by Evan Corcoran (a former assistant US attorney who was representing Steve Bannon in a separate criminal case. Reportedly other lawyers had declined the job, and Trump hired Corcoran during a conference call without vetting.)
Soon afterward: Philbin was interviewed by FBI agents because they considered him a witness to how the 15 boxes of material — some of it marked as classified — made their way to his Mar-a-Lago resort in Palm Beach.
May 11, 2022: One of Trump’s lawyers accepted a grand jury subpoena that sought “any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.”
May 25, 2022: Corcoran sent the DOJ a letter claiming that Mr. Trump had the absolute authority to declassify the documents.
(This was a nutso argument to make. Clearly, Corcoran was doing Trump’s bidding.)
These events happened after the subpoena was accepted:
This raises a few questions; for example, why didn’t Corcoran, who did the search, sign the document? Why give it to someone else to sign? What explanation did he give to Bobb?
Let’s stop and consider what is happening. Corcoran came into this case after the government suspected that Trump was jerking them around, lying, and trying to keep government documents. Corcoran didn’t search the entire premises but relied on others to tell him where to search. He then helped another lawyer write and sign an affidavit that all responsive documents had been returned.
Then a lawyer (perhaps Corcoran) did not let the feds look for themselves.
August 8, 2022: The FBI executed the search of Mar-a-Lago and seized: 33 boxes, containers, or items of evidence which contained over 100 classified records, including some classified at the highest levels. In the storage room alone, FBI agents found 76 documents bearing classification markings During the search, the FBI found documents in Trump’s bedroom, office, a first-floor storage room at Mar-a-Lago, and a “container in a closet” in Trump’s office. Three classified documents were located in the desks in the “45 Office.”
At this point, Corcoran and Bobb both knew that the document they gave the feds contained a lie and that whoever stopped the feds from opening boxes may have been part of a coverup.
A witness saw or heard the crime take place or may have important information about the crime or the defendant.
An accomplice is a person who knowingly, voluntarily, or intentionally gives assistance to another in (or in some cases fails to prevent another from) the commission of a crime. An accomplice is criminally liable to the same extent as the principal. An accomplice, unlike an accessory, is typically present when the crime is committed. Jurisdictions will sometimes differ as to the definition of knowingly. Generally, “knowingly” is enough for the person to be aware of a specific fact. For instance, in the Court of Appeals case, State v. Allen, the court instructed the jury that a person acts “knowingly” with respect to a fact or circumstance when they are aware of that fact or circumstance.
An accessory is someone who aided or contributed to the commission or concealment of a crime. There are two categories of accessories: accessory before-the-fact and accessory after-the-fact. Unlike an accomplice, an accessory does not need to have been actually or constructively present during the commission or concealment of the crime.
Sometimes it isn’t immediately clear whether a person is a witness, accomplice, or accessory. Pro tip: If you witness a crime, make sure you don’t do anything that would change your status to accomplice or accessory.
And the story continues:
September 12, 2022: Federal agents seized Boris Epshteyn’s phone pursuant to a search warrant. (For the feds to seize a phone, there has to be probable cause that the phone contains evidence of a crime.)
Late 2022: The feds revealed that they suspected Trump was still hoarding sensitive government documents. In response, Trump’s legal team hired two individuals to search Trump Tower in New York, the Bedminster golf club, an office location in Florida, and a storage unit in Florida, where ultimately, two documents with classified markings were found. Those documents were handed over to the FBI.
March 2023: A judge ordered Corcoran to testify and turn over his audio notes.
This was when we learned that Corcoran had kept detailed audio notes of the period between the acceptance of the subpoena in May and the arrival of the agents in June.
(Corcoran did his best to avoid testifying and turning over these notes, claiming that they were protected by attorney-client privilege. The court ordered Corcoran to turn them over after finding that the crime-fraud exception applied, meaning that the judge made a preliminary finding that the recordings likely contained evidence of an ongoing crime or coverup.)
According to the New York Times, “The level of detail in the recording is said to have angered and unnerved close aides to Mr. Trump, who are worried it contains direct quotes from sensitive conversations.” (Translation: They’re worried the records contain evidence that implicates them.)
This week, the plot thickened:
Among other things, the recording establishes that Trump
The first question is: Where is the missing document?
The question from the beginning was: Why didn’t Trump just give back the danged documents? If he had, he would have had no criminal liability.
One reason: He’s willing for this to be his last stand. He wants to say, “I had the right to take those documents, and anyone who doesn’t agree will feel my wrath.”
The next question is: Why are these lawyers going to so much trouble to help him?
Okay, back to Parlatore’s TV appearance. Palatore singled out Mr. Epshteyn as trying to keep the team from conducting additional searches of Mr. Trump’s properties after the FBI searched on August 8th.
In other words, Parlatore is accusing Epshteyn of criminal behavior (obstruction or accomplice liability).
The Daily Beast reported that: “As Trump’s legal troubles keep growing. . . so, too, does the unwieldy band of attorneys” who wonder if one could turn out to be a “snitch” and “turn on the rest of the team.”
A snitch? Why would they worry about a snitch in their midst if none of them were breaking the law?
Mob lawyers are a thing. In 1985, Reagan’s staff commissioned a study of organized crime & found “renegade attorneys” who launder money, orchestrate perjured testimony, offer bribes, use law offices to plan crimes, etc. Mob attorneys are those who “protect the leadership of a criminal organization” and are part of the “life-support system of organized crime.’’
In this New York Times op-ed piece, James Comey, who knows a thing or two about enabling right-wing extremism, offers this insight into how an otherwise intelligent and rational lawyer might end up criming for Trump. Comey says, “Accomplished people lacking inner strength can’t resist the compromises necessary” when working for Trump and are “shaped” into “channeling” Trump. Speaking from “four months of working close to Mr. Trump and many more months of watching him shape others,” Comey says:
“It starts with you sitting silently while he lies, both in public and private, making you complicit by your silence. In meetings with him, his assertions about what “everyone thinks” and what is “obviously true” wash over you, unchallenged . . . because he rarely stops talking. As a result, he pulls all of those present into a silent circle of assent.”
“Speaking rapid-fire with no spot for others to jump into the conversation, Mr. Trump makes everyone a co-conspirator to his preferred set of facts, or delusions. I have felt it — this president building with his words a web of alternative reality and busily wrapping it around all of us in the room.”
“I must have agreed that he had the largest inauguration crowd in history because I didn’t challenge that. Everyone must agree that he has been treated very unfairly. The web building never stops.”
“From the private circle of assent, it moves to public displays of personal fealty at places like cabinet meetings. While the entire world is watching, you do what everyone else around the table does — you talk about how amazing the leader is and what an honor it is to be associated with him . . .”
“Of course, to stay, you must be seen as on his team, so you make further compromises. You use his language, praise his leadership, tout his commitment to values.”
“And then you are lost. He has eaten your soul.”
This brings me to a question people have asked me on social media:
“Why would any lawyer choose to represent Trump knowing what Trump is like and the fate that often befalls his lawyers?”
Some may be aspiring Roy Cohns. Some may want the fame of a high-profile client. Some may agree with his politics. Some may be true believers. Some may join the team because Trump needs a good lawyer, and they want to offer legal assistance. But before long, they may find that Trump has eaten their souls and turned them into accomplices.
“Teri, will all these lawyers be charged with crimes?”
I have no idea, but I suspect that the DOJ will give them every possible chance to come clean (or as clean as they can). Of course, the only way to do that is to testify against Trump. Whether they will or can remains to be seen.