Thursday

March 28th, 2024

Nation

Trump's lawyer has a big mouth. Here's what that tells us about Mueller's probe

Sarah Posner

By Sarah Posner The Washington Post

Published Sept. 19, 2017

Trump's lawyer has a big mouth. Here's what that tells us about Mueller's probe
Two of President Donald Trump's lawyers were lunching at Washington, D.C. steakhouse recently, talking loudly about the Russia investigation in full earshot of New York Times reporter Ken Vogel - and, presumably, other diners at the same restaurant.

The explosive revelation that resulted from that indiscreet discussion is this: Trump's special counsel, Ty Cobb, is unhappy that White House counsel Don McGahn is keeping some documents related to the Russia investigation in a safe.

Trump's lawyer, like his client, has a big mouth - coupled with a pronounced deficit of self-restraint. And his imprudent lunchtime conversation could have huge implications for the Russia probe.

If the documents that Cobb referenced in that conversation indeed exist, they could well provide Special Counsel Robert Mueller with crucial evidence about Trump's thinkingas Mueller investigates whether the president obstructed justice when he fired FBI Director James Comey. And now the world - including Mueller - is alerted to the possibility that relevant documents are locked away in the White House.

In the scene depicted by the Times, Cobb engaged in a loud conversation over lunch with Trump's personal lawyer, John Dowd. This stunned lawyers and legal experts. "It is staggeringly poor judgment for these lawyers to converse about the Russia investigation in a public place," tweeted Andy Wright, a law professor and former lawyer in the Obama White House.

According Vogel, who posted a photograph of the pair on Twitter, Cobb, whose signature mustache and previous run-ins with reporters make him instantly recognizable to most denizens of D.C.'s political scene, spoke without any apparent restraint or even awareness that anyone, much less a reporter, could hear him.

Cobb, according to subsequent reporting by the Times, favors turning over documents to Mueller, "even erring on the side of inclusion when it comes to producing documents, because he maintains the evidence will show Mr. Trump did nothing wrong."

But Mueller is seeking to interview McGahn, and the White House counsel is reportedly concerned about whether Trump might want to invoke executive or attorney-client privilege, and thus wants to preserve that privilege for Trump. This might circumscribe what McGahn could discuss if Mueller interviews him (and Trump prevails on any legal arguments asserting privilege).

According to the Times, Cobb let loose to Dowd about this internal White House disagreement:

"The White House counsel's office is being very conservative with this stuff," Mr. Cobb told Mr. Dowd. "Our view is we're not hiding anything." Referring to Mr. McGahn, he added, "He's got a couple documents locked in a safe."

Keeping in mind that we do not know for certain that Cobb is right about McGahn keeping documents in a safe, or, if he is, what those documents contain, there is nonetheless ample evidence that McGahn, in particular, is likely in possession of information critical to Mueller's probe of possible obstruction of justice by Trump in firing Comey. There is strong reason to believe these documents could tell Mueller a great deal about Trump's state of mind when he fired his former FBI director.

As former federal prosecutor and legal commentator Renato Mariotti writes today in a lucid accounting of where various aspects of the Russia probe stand, McGahn could provide the "most significant testimony" in Mueller's obstruction of justice investigation.

We know, based on other reporting from the Times from earlier this month, that Trump drafted, but never sent, a scathing letter firing Comey. McGahn had opposed Trump sending the letter, presumably because he "believed that its angry, meandering tone was problematic" and because he had "concerns" about "references to private conversations the president had with Mr. Comey, including times when the F.B.I. director told Mr. Trump he was not under investigation in the F.B.I.'s continuing Russia inquiry."

According to the Times, Mueller has a copy of an "early" draft of this letter. But we don't know whether there were other drafts, iterations, or notes - or whether Mueller has those, or if those may be the documents in McGahn's safe. But any documents retained by McGahn, in particular, could be pivotal, because of his reported role in stopping Trump from sending that firing letter. Those documents could shed light on Trump's motives in firing Comey. As Wright put it, "If I'm a criminal or congressional investigator, 'what's in McGahn's safe' becomes an investigative target."

McGahn's comments on that letter, written or verbal, Mariotti notes, "could be extremely important," particularly if he advised Trump that firing Comey would put him in legal jeopardy.

We have become accustomed to Trump's White House leaking bits of information to reporters, cloaked by anonymity. In the Russia investigation, at least, Cobb's indiscretion is unlike anything we've seen so far. If Cobb is right that McGahn has documents has locked away, he not only has (once again) demonstrated his penchant for reckless public chatter. He may have revealed just how reckless he can be in protecting his client's interests - by giving Mueller a gift.

Columnists

Toons