Marc Kasowitz - Donald Trump's longtime lawyer and lead attorney for Trump on the Russian investigation - had a very bad week. Like other tragedies and farces, it can be divided into three acts.
Act One: the New York Times reported that he might be preparing to resign, apparently because he's struggling with representing Trump, an uncontrollable client who blames his lawyer for problems created by Trump, his family, and his courtiers, who have conflicting agendas and shifting loyalties. More recently, the Times reported that Kasowitz seems to be planning to remain as Trump's lawyer.
Act Two: ProPublica published a detailed and very unflattering article on why Kasowitz hasn't sought, and might not be able to get, a security clearance: it notes that this could severely impair Kasowitz's ability to represent Trump in the Russia scandal. Any litigation or criminal prosecution relating to the Russia collusion investigation doubtless will encompass much classified material that could be probative evidence: a lead attorney should be able to review all the available information to advise his client, but Kasowitz wouldn't be able to do that without a security clearance.
Act Three: A politely critical email from a stranger who read the ProPublica article provoked Kasowitz to reply with personal threats. Through a surrogate-spokesman, Kasowitz has announced his intention to "apologize", but the target of Kasowitz's splenetic outburst contacted the FBI, which could decide there are grounds to recommend federal investigation and prosecution of Kasowitz for the threats. Also, the recipient of the emails, or another person in possession of them, could send them to the First Judicial Department Attorney Grievance Committee in New York State, which could investigate and discipline Kasowitz, perhaps suspending or even revoking his license for the threats.
However this email imbroglio plays out for Mr. Kasowitz, he ought to consider the merit in the advice he got in that stranger's email: “I believe it is in your interest and the long-term interest of your firm for you to resign from your position advising the President re pending federal legal matters. No good can come from this.”
"...No good can come from this." Indeed. Resigning might be the best course Kasowitz could follow. There are at least four layers of problems that any lawyer representing Trump - personally, commercially, and/or criminally - has to consider. Each one of them alone makes a lawyer's life difficult. Together, they can make it impossible.
1. Trump's blame game
First, Trump habitually blames everyone around him for his mistakes and then blames them again for failing to convince the media to ignore whatever he's most recently bungled. See for yourself: I just Googled "Trump blames" and 12,600,000 entries appeared. He's currently blaming President Obama for his son's meeting(s?) with Russians allegedly offering kompromat on Hillary Clinton. Clients who blame their lawyers for the clients' mistakes and reflexively second-guess their lawyers make for uncomfortable and inefficient professional relationships, like any relationship where one party has a "blame-first" mentality.
2. Trump stiffs vendors all the time
Second, Trump has a documented history of failing to pay for services rendered. Here's another Google search experiment: Google "Trump fails to pay." I got 33,300,000 results. Included among the stiffed are...former Trump lawyers. Any attorney who represents Trump risks having bills ignored, challenged, or rejected.
3. Trump's troubled relationship with the truth
Third - and this is where things become personally and professionally dangerous for attorneys who represent Trump and his enablers - it appears that Trump, his immediate family, and their closest courtiers have, at best, an improvisational relationship to truth. One can look for an ongoing example of this to yet another email crisis brought to us by the Trump family - Donald Trump Jr.'s evolving narrative on his meeting(s?) with Natalia Veselnitskaya.
One of the nightmares in practicing law is representing a client whose story changes frequently and substantially. Lawyers analyze their client's legal exposure and construct their advice, and their negotiation and litigation positions, on facts and law. A client who offers shifting facts or "alternative facts" - as do the Trumps - makes it difficult for his attorney to settle on a legal and tactical position to prepare for negotiation or litigation on behalf of the client: if the facts keep changing, it's difficult to know what your advice to your client should be and what your strong arguments might be, or even if you have strong arguments.
More significantly, a client who serially alters the facts forces his lawyer(s) to consider whether the client can be trusted under oath to stick to the facts and not perjure himself. A client who is comfortable with lying under oath might be equally comfortable persuading ("suborning") another witness to commit perjury.
An attorney who suborns perjury - who knowingly allows a witness to testify falsely under oath or has reason to believe that the witness has falsely testified - can be brought before a licensing body in a disciplinary action to suspend or revoke her license to practice law.
But wait, there's more! Subornation of perjury also is a felony under state and federal law. As the Trumps and their courtiers are undergoing scrutiny by Mr. Mueller and Congress, let's stick with federal law on subornation.
Under federal law, for example,
To establish a case of subornation of perjury, a prosecutor must demonstrate that perjury was committed; that the defendant procured the perjury corruptly, knowing, believing or having reason to believe it to be false testimony; and that the defendant knew, believed or had reason to believe that the perjurer had knowledge of the falsity of his or her testimony.
Note: the defendant in a subornation case would be the person who procures the perjury.
When a lawyer's client or witness keeps changing his story to his lawyer, or to an FBI agent, or under oath to a grand jury or trial court or Congressional committee (or offers testimony that is obviously or absurdly inconsistent with other information the attorney knows or believes to be true), that can amount, for the lawyer, to "reason to believe" that the client or witness had knowledge of the falsity of the testimony. A lawyer who nevertheless offers a witness that she has reason to believe will commit perjury exposes herself to prosecution for subornation of perjury.
So...these are possible results for a Trump attorney such as Mr. Kasowitz, especially in a sprawling investigation that will present multiple opportunities for testimony under oath before grand juries, in Congressional hearings, and, perhaps, in federal courtrooms:
- You're blamed for events you can't control.
- You don't get paid.
- You lose your license.
- You're prosecuted for suborning perjury. Or,
- (e) All of the Above.
Instead of merely apologizing to his unsolicited email correspondent, maybe Mr. Kasowitz ought to thank him for the advice and follow it.