When the client, particularly a publicly-known client, is under criminal investigation, his lawyer often tries to take potentially dangerous actions out of the client’s hands—give the client distance, so to speak. He may do so to restrain the undisciplined client given his penchant for doing something to worsen his situation, or he may do it so that the client does not have to take action that in the short term would appear to help, but might actually subject him to further, different criminal exposure later on. The experienced lawyer is often able to skillfully navigate the treacherous shoals implicated without added hazard to the client or even to the lawyer himself. At least, that’s the plan.
But can the lawyer, even the ethical lawyer, sometimes run afoul of “the plan,” particularly when the stakes are high, or the client is particularly demanding? Trump’s lawyer, John Dowd, may have indeed raised the stakes in the investigation by Special Counsel Robert Mueller. The New York Times reported on March 29, 2018 that Trump’s former lead lawyer, early on in the investigation, communicated to Paul Manafort and General Michael Flynn that Trump would ultimately pardon them. Dowd—who enjoys an excellent reputation—has firmly denied this report. But assume, solely for purposes of this article, that it is correct. The message would presumably be clear: “hang tough;” don’t cooperate with Mueller and you’ll never see the inside of a jail. Yes, when Trump pardoned Sheriff Joe Arpaio, who had been convicted of criminal contempt, it was controversial, but it did not appear that Trump told Arpaio, in any way, “go ahead and violate the court’s ruling and I will protect you.” But let’s surmise. Whether “fronting” for the president or not—what if Dowd did communicate to these then-targets, now-defendants, that they should hold their tongues in exchange for quid pro quo pardons? Not explicit; subtle. Knowing they could expect a pardon might be enough. The question for this column is could Dowd—Dowd, not Trump—have personal criminal exposure? Assuming, and underlining the word “assuming,” these proposed facts, indeed he may. If the report is correct, one could conclude that he basically communicated to them or to their lawyers: “Clam up and you’ll be paid for it, with a pardon.”
Obstruction of Justice
True, a citizen’s right to invoke the Fifth Amendment when questioned by the authorities is known even by schoolchildren (or anyone who has ever watched TV). So one would think, for example, that if my friend and I rob a bank, it would be entirely appropriate for me to tell him that if the FBI comes a knockin’ he should simply “take five,” and there will be no consequences for me in doing so (beyond, of course, the robbery itself). Not necessarily so. I would be telling my friend to clam up harboring a “corrupt motive”—i.e., to protect my own self from incrimination—and the courts have said that might constitute the crime of obstruction of justice. Generally and cf., U.S. v. Cioffi, 493 F.2d 1111 (2d Cir. 1974) cert den. 419 U.S. 917 (1974). While the constitutional privilege against self-incrimination is an “absolute right,” one who “bribes coerces, forces or threatens a witness to claim it, or advises with corrupt motive the witness to take it” obstructs justice. Cole v. U. S., 329 F. 2d 437 (9th Cir. 1964) cert den. 377 U.S. 954 (1964).
Take me out of it, then. Suppose my lawyer in the above scenario told my friend to “take the fifth.” You have the same problem—the lawyer is telling the co-conspirator to act to protect his own client. But let’s up the ante a little—my lawyer also represents a co-defendant, or technically represents only the interests of that co-defendant, so that a claim of privilege attaches. It may not help. One William Cintolo was apparently a “mob lawyer” (in the vernacular of the street). He was convicted of conspiring with a known mobster, Angiulo, to inhibit his own client— a client “referred” by Angiulo—from cooperating with an investigation or testifying truthfully before the grand jury, after the client had been granted immunity. Looking to dicta in Cole, supra, the U.S. Court of Appeals for the First Circuit upheld Cintolo’s conviction—an attorney who “corruptly advised a client to wind the toga of the fifth amendment about him could well be subject to obstruction of justice liability notwithstanding any ‘privilege’ he might claim to have in rendering that advice.” [emphasis in original]. U.S. v. Cintolo, 818 F.2d 980 (1st Cir. 1987) cert den. 484 U.S. 913 (1987).
In U.S. v. Fayer, 523 F. 2d 661 (2d Cir. 1975), Alfred Fayer, a lawyer, met with his clients’ co-conspirator, Edward Goodwin, without Goodwin’s attorney present; an attorney, I note, who advised Goodwin to cooperate with the government. Fayer and his clients suggested Goodwin hire Fayer instead, and offered various inducements to Goodwin. At the same time, Fayer tried to influence Goodwin to not voluntarily appear before the grand jury. Goodwin, however, was already cooperating with the government and their conversation was recorded. After a bench trial, Fayer was acquitted of attempting to influence a witness because the trial judge determined that, while “foolish as to almost defy belief,” there was reasonable doubt as to Fayer’s motive in giving Goodwin advice. In other words, the court found substantial doubt as to whether Fayer was protecting his first clients, or also and in good faith concerned about Goodwin. As an aside, Fayer was ultimately convicted of perjury based on statements made at that trial (573 F.2d 741 (2d Cir. 1978) cert den. 439 U.S. 831 (1978)). But the point remains. Had the trial court found a corrupt motive, Fayer would not have survived the obstruction charge.
Let’s turn to the Rules of Professional Conduct. Needless to say, a lawyer may not “knowingly make a false statement of fact or law to a third person.” NY Rule of Professional Conduct 4.1; ABA Model Rule of Professional Conduct 4.1. Further a lawyer may not engage in “dishonesty, fraud, deceit or misrepresentation.” NY and ABA Rule 8.4(c). Assuming a conflict, a “lawyer shall not give legal advice to an unrepresented person other than the advice to secure counsel …” NY and ABA Rule 4.3.
Back to my bank robbery hypothetical—what if my co-conspirator already has a lawyer? Then my lawyer will talk to his lawyer because with a lawyer in place he shouldn’t talk to the represented individual behind the lawyer’s back, NY and ABA Rule 4.2. The lawyers’ conversation, to be clear, won’t be: “have him take the fifth.” It will be far subtler, more nuanced—this even if it is my lawyer who referred counsel to the co-conspirator. The lawyers will explore the co-conspirator’s rights and potential strategies and my lawyer will hopefully get the other lawyer to understand, if he’s not there on his own, the direction that my lawyer may be going in, and that that same direction may be in his client’s best interest. That is, unless my lawyer is simply ill-equipped. Yes, it may sound disingenuous and even conspiratorial, but if done correctly and without corrupt motive, attorneys communicating with other attorneys, as a practical matter, are typically or de facto awarded a modicum of a safety valve behind which prosecutors recognize they shouldn’t stray in impairing the defense function.
Back to The New York Times and its report about Dowd (which, again, he denies). Dowd would not have had to express an overt “quid pro quo” proposal, or anything like it, either to Manafort or Flynn or to their lawyers. Dowd would know that the lawyers are big boys and would understand that Dowd may be communicating sub silentio that pardons for them were in the offing. Of course, the lawyers would be obliged to tell their clients what they had been told (NY Rule 1.4: a lawyer “shall … promptly inform the client” of “material developments”; cf. ABA Rule 1.4) so that the lawyers and clients can assess the reliability of what was being however subtly suggested to them by, yes, “the President’s lawyer.” (Of course, in the instance of this president, “reliability” might be a big factor in decision making.)
The problem is this: If The New York Times is wrong and the whole thing didn’t happen, that is basically the end of it. However, if there was some form of communication about the potential for a pardon—impliedly or otherwise—Dowd’s state of mind or intent in even mentioning it becomes an issue for prosecutors to consider, however respectful of him they might be. Under those circumstances, whether intending to shield the client or not, Dowd will have exposed himself even if the President himself might not be vulnerable to potential criminal exposure. And whether totally innocent or not, totally exonerated or not, who needs that?
Joel Cohen, a former prosecutor, is of counsel at Stroock & Stroock & Lavan. He is an adjunct professor at Fordham Law School. Dale J. Degenshein, special counsel at Stroock, assisted in the preparation of this article.