The Legal Implications For Trump Of Fox’s Seth Rich Story, And Don Jr’s Statement

As a reminder:

If this turns out to be true on Seth Rich and Trump, then someone needs to be arrested https://t.co/9TFErmvBA9

— Heisenberg Report (@heisenbergrpt) August 1, 2017

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Via Bob Bauer for Just Security

In the last 48 hours, the press has reported twice on the President’s, or the White House’s, involvement in putting out false or misleading information about Russia-Trump campaign connections. The White House has confirmed the gist of the Washington Post story that Mr. Trump helped his son, Don, Jr., draft a wholly misleading account of the Trump Tower meeting with Russians that took place in June 2016. The Post says the president dictated the release; the White House says, vaguely, he “weighed in.”

The other story from NPR is murkier,  based on a lawsuit by a former Fox News commentator, Rod Wheeler.  Wheeler alleges that the White House was complicit in the fabrication of a Fox News story intended to  place responsibility on the late Seth Rich, a former DNC employee, for the leaking of purloined Clinton emails to WikiLeaks.

Much is not known, and all conclusions about the legal significance of these accounts have to be preliminary. All assumptions about how any of these developments affect Special Counsel Robert Mueller’s investigation are necessarily speculative. There are, however, legal implications in both instances, and beyond that, in the connection between the two. I spell out those legal implications here.

Together these two story lines point in the direction of a White House determined at all costs and with disregard to the facts to deny any connection, let alone collusion, with the Russians. That would be unsurprising if there was no evidence at all of a Russia-Trump partnership: the White House would naturally, vigorously and  rightfully deny what it believed to be a baseless allegation. But by June 2016, senior campaign officials, such as Paul Manafort and Donald Jr., knew there had been contact between the Russians and the campaign. (Jared Kushner received emails alerting to him of the purpose of the June 2016 meeting but he claims he did not read them.)

It has become increasingly difficult to accept that the President, even for an extensive period afterward, knew nothing about it. Yet that to this point has been Mr. Trump’s story.  On July 12, a few days after the New York Times’ initial story of the Russia meeting broke, the President told reporters on Air Force One that he “only heard about it [the meeting] two or three days ago.” (He repeated the same claim in an interview with Reuters.) Michael Isikoff subsequently reported, however, that Trump’s principal lawyer in the Russia investigation and the chief legal officer of the Trump Organization were both informed of the emails setting up the Russia meeting three weeks earlier–after lawyers for Kushner discovered the emails. One would have to believe that on a matter of this importance, one to which the President regularly returns in his tweets and public comments, none of his legal or other advisers thought he should be promptly informed of these extraordinary emails.

Now, the most recent Post story reveals that when Kushner’s and Trump’s lawyers learned about the emails, lawyers and advisers for Trump, including “one of the president’s most trusted and loyal aides” and a White House spokesman “huddled with Kushner’s lawyers” and “gamed out strategies for disclosing the information.”  As the Post noted, these discussions “began weeks before any news organizations began to ask questions about it.” Mr. Trump then became involved in writing the statement to the Times, either dictating it or “weighing in.”  It does not seem plausible that this is the first time the president was apprised of the emails.

By the time that fallacious Fox story about Mr. Rich came to their attention, the Russia story was white-hot and Mr. Mueller had been appointed to investigate the matter. Those peddling the story were able to obtain a face-to-face meeting with the White House Press Secretary to preview it, and as the story neared airing, there is little chance—on any assumption about how the White House worked—that Mr. Spicer did not alert others. Whether, as suggested, the President knew of the Fox story and pressed for its publication is impossible to know on the allegations in the complaint alone. And yet, after the Fox story came out, Mr. Spicer denied that the White House knew anything about it.  He tried to dismiss the question more indirectly, by saying that “generally, I don’t get updates on the DNC,” but then move to an apparently straight denial: “I’m not aware of that.”

This is another feature tying the two episodes: knowing denials of known facts. In the case of the June 2016 meeting, one of Mr. Trump’s lawyers also issued a flat and false public denial that Mr. Trump had any hand in his son’s statement about the June 2016 meeting. The lawyer did so twice.

Without presuming to say how these actions would affect the Special Counsel’s inquiry, a defense lawyer assessing the damage to the President’s legal position would consider this:

1. The President has essentially given up the chance to argue that whatever the actions of subordinates, he was, after all, the candidate for president, and then a President, who had no time for such smaller matters. If “mistakes were made,” they could not have been his. But these stories bear out what the Mr. Trump’s day-to-day behavior amply demonstrates. He is obsessed with defending himself, perhaps more on the Russian matter than anything else, and he seeks to exert direct control over what he cares about. The defense of “hey, I am the President with more important things to think about” has crashed to the floor. And it was barely available anyhow, as anyone might have concluded by adding up the Russia content in his early dawn tweets.
2. The President is showing himself to those investigating the Russia matter as chronically reckless with the truth or, as unnecessary, indifferent to it. He either directs subordinates to follow suit, or he has created a culture in which, even if he does not issue a direct order, others like Mr. Spicer know better than to acknowledge a fact that would cause the president trouble and enrage him. He apparently directed his son to be untruthful; his lawyer also made categorically false statements about the President’s role in the first explanations of the June 2016 meeting; and Mr. Spicer falsely stated that he was “not aware” of the Fox-Rich story. It is already well known that the president “plays fast and loose” with facts, as it suits him, and notably when he is speaking “off the cuff.” This episode also reveals him to be quite deliberate in the deployment of false or misleading statements on a matter of legal as well as generally public significance, in the midst of an ongoing criminal investigation.
3. More specifically, the President’s attempt to distance himself from the June 2016 meeting was always a challenge for him. It has become a hopeless undertaking. There has always been a question of whether a president with this powerful impulse to manage matters of most importance to him could plausibly say he knew nothing about the meeting before or even after. In fact the President argued that no one told him about it because it “unimportant.”  This seemed odd at the time (see 1. above). The president’s active participation in the statement to the Timesshows that he was well aware of the meeting’s importance.
4. The credibility of the Trump legal team in this matter clearly suffers from the disclosure of the President’s involvement in the production of the misleading statement. If he “dictated” the statement and the lawyers found out about it only after its transmission to the Times, then, of course, this is another instance in which they display lack of control over the representation.

The White House says, however, only that Trump “weighed in” on the statement. If that is the case, and the president reshaped the statement to be materially misleading but this was done and provided to the Times with the lawyers’ knowledge, then they effectively acquiesced in this deceptive public account of the meeting.  The statement itself tends to support this second account: It is worded with sufficient care that it is seems unlikely that the president, not noted for meticulous speech or prose, wrote it alone or without another’s review.   The Post story also suggests that only “some” of the lawyers were “surprised” by the President’s statement. And one of them, Mr. Sekulow, took to the airwaves to deny that the President was involved in the Trump Jr. statement. According to Politico’s Josh Dawsey, Don. Jr.’s statement “figured heavily” into the decision of Mark Corallo, the legal team’s spokesperson, to resign.

Lawyers count on credibility in their dealings with investigators and prosecutors. To be clear, representing this president must be a professional challenge of the highest order. No doubt various members of the legal team are doing their best.  Moreover, the Post story notes that only “some,” not all, the lawyers may have known of the president’s involvement with the statement. On the whole, however, the episode is damaging to the president’s legal team.

Most important, these stories are unhelpful to the president and his legal position because they add more detail and texture to a picture of how he and those answering to him at his direction operate. What comes ever more into focus are questions of character and of a standard mode of operation. The disturbing character issue puts in an unfavorable light every denial, clarification under pressure, or claim of privilege or of the need for secrecy (such as White House visitor logs).  The now familiar mode of operation suggests that as one might have assumed, Mr. Trump was right in the middle of it all,  insisting on remaining at the controls.

One could look at the legal problem for Mr. Trump in these terms, from a reasonable lawyer’s perspective: it is never easy to represent someone successfully who has established a clear record of repetitive falsehoods; an insistence in taking all matters of concern to him, including his legal affairs, into his own hands, and with limited patience for the advice of counsel; and whose behavior exposes a ruthlessness in the choice of means to accomplish his ends. The advantage lies with the investigators and, potentially, prosecutors.