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September 21, 2017


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Andy Wright

You state: "Cobb (and Dowd) represent President Trump personally; their job is to help the President understand his rights and duties, and to pursue his proper objectives by any means within the limits of the law. The White House Counsel’s Office has a more institutional role; while the Office generally takes instruction from the sitting President and considers him or her its “client,” White House Counsel imagine their ultimate loyalties to be owed, at least in part, to the Presidency as an institution rather than any individual President occupying the office. Needless to say, these interests are not always easily distinguished, but they can diverge."

There's a problem with the premise of your argument: That is true as to Dowd, but Cobb is a White House, public lawyer. (See here: He is Special Counsel to the President. That's an investigation management role we used in the Clinton White House (Steve Reich occupied it for a time while I was Assistant Counsel to Vice President Gore) and the Bush WHCO did as well with Emmet Flood. We didn't have occasion to do so in the Obama WHCO because the investigative heat never got that bad.

Here's my analysis of the ethics issues, among other things, about the BLT Steak Summit:

Andy Wright

One correction: now that I recall, when I came on as Associate WH Counsel, Kim Harris served as Special Counsel to President Obama with investigation management role for a period before she was promoted to Principal Deputy WH Counsel.

Deep State Special Legal Counsel

Paradoxically, because President "Dotard" has no ethical, moral or legal compass, except for flash cash and bankruptcy law, things are more out in the open in an odd sense. Like a slob whose shirt is sticking out of his pants from under his belt He is not grounded in the law, history nor governing, so in his ignorance of things just kinda hangs out there for everybody to see. No restraints.

Bernie Burk

Andy Wright:

Thanks very much for the factual correction on Ty Cobb's title and role; you're absolutely right, and I shouldn't have made that error. I'm not sure the difference changes much of the analysis in the post. To be sure, in Cobb's role as Special Counsel, the precise identity of his client and how his loyalties must be characterized is less clear; he's not in the White House Counsel's office (McGahn's domain), nor is he the President's personal lawyer (Dowd's domain). And you are quite right that DC Rule of Professional Conduct 1.6(k) suggests a more institutional than personal role.

But the fact remains that, assuming Cobb meant what he was overheard saying at lunch, his view and McGahn's view about how to respond to the disclosure requests pending from various quarters pointedly differ. The lack of due care in being publicly overheard on this score is an obvious violation of the duty to safeguard confidences, unless it was deliberate and implicitly or explicitly authorized by the White House, full stop.

Was it a violation to disclose it to Dowd? I would be hard pressed to see how that could be improper; the President's personal counsel needs to be informed about how the discovery is being handled, and it's difficult to imagine a scenario in which the President instructed his Special Counsel NOT to tell his personal counsel.

For those who are interested in this strange little episode, the perspective from an experienced Executive Branch lawyer that Andy Wright provides in his own blog--link in his post above--provides all kinds of valuable nuance. Thanks for posting, Andy!


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