ONE LAWYER’S DILEMMA

Paul Manafort is campaign chairman and chief strategist for Donald Trump. He also has a law degree from Georgetown. That combination has landed him in a tough spot.

The J.D. from Georgetown means Manafort can’t plead ignorance about the significance of Trump’s escalating attack on the rule of law. As The New York Times reported recently, reliably conservative legal scholars express deep concern over Trump’s failure to acknowledge the limits of presidential power. Uniformly, every high-level Republican has repudiated Trump’s criticisms of Judge Gonzalo Curiel, the Indiana-born federal judge presiding over the cases against Trump University:

Senator Mitch McConnell: “I couldn’t disagree more with what he had to say.”

Representative Paul Ryan: “I completely disagree with the reasoning behind that.”

Former majority leader Newt Gingrich, who has made no secret of his vice-presidential ambitions on a Trump ticket: “This is one of the worst mistakes Trump has made. I think it’s inexcusable,”

And that backlash came before June 5, when Trump added all Muslims to his growing list of “possibly” biased judges who can’t give him a fair shake in a courtroom because their ethnicity collides with his most vile public policy pronouncements.

Manafort Knows Better, Even If His Client Doesn’t

Trump is no stranger to litigation. According to USA Today, his personal and business interests have been involved in more than 3,500 state and federal legal actions — 70 of them filed after announcing his presidential bid. Playing a game that’s worse than identity politics, he’s now engaged in a full frontal assault on the integrity of the judiciary for obvious personal gain in a private lawsuit. At best, it’s unseemly. At worst, it’s could be an unlawful attempt “to influence, intimidate or impede” a judge “in the discharge of his duty” (18 U.S.C. Section 1803) and/or “obstruct the administration of justice” (18 U.S.C. Section 401).

At Georgetown, Paul Manafort learned the legal rules governing every litigant’s right to challenge a judge’s fairness. Prevailing on a motion to recuse requires a factual showing, not a racist rant. The law is well settled that ethnicity or national origin is not a valid basis for disqualification. In fact, a recusal motion on those grounds would be on the receiving end of sanctions for frivolous pleading. It’s no accident that Trump’s outside lawyers — led by the widely respected Daniel Petrocelli at O’Melveny & Myers — haven’t pursued that path.

Enter Manafort

When Trump hired Manafort in April, Senator Ted Cruz was collecting more than his share of delegates from states where Trump had won the popular vote. Trump complained that the system was “rigged,” “corrupt” and “crooked.” Manafort’s assignment was to corral Trump delegates and keep them in line to avoid a contested convention.

In 1976, Manafort was involved in a similar task. Only two years out of law school, he was was President Gerald Ford successful “delegate-hunt coordinator” for eight states during Ronald Reagan’s attempt to wrest the nomination. After Ford lost the general election, Manafort spent three years working for a private law firm in Washington, D.C.

When Reagan prevailed in 1980, the president nominated him to the board of directors of the Overseas Private Investment Corporation — the government’s development finance institution. At that point, what would become Manafort’s lucrative career began. Since 1981, he’s been a lobbyist and consultant, sometimes for notorious international clients.

Master of Extreme Makeovers

In 2005, Manafort became an adviser to Viktor Yanukovych, whose political career seemed over after losing the Ukranian election for prime minister. With the help of Manafort, Yanukovych won in 2010 by exploiting popular frustration with government, exacerbating cultural divisions within the Ukranian electorate, and railing against NATO.

Sound familiar? History may not repeat itself, but sometimes it rhymes. Cue the Trump assignment.

His Latest Client Makeover

On April 21, 2016, newly appointed Manafort assured members of the Republican National Committee that Trump’s rhetorical antics were just an act for the crowd.

“That’s what’s important for you to understand – that he gets it, and that the part he’s been playing is evolving now into the part you’ve been expecting…”

A month later, Manafort had accomplished his delegate mission and received a new title: campaign chairman and chief strategist. Since then, Trump’s attacks on the rule of law have intensified. It now appears that, in contrast to Manafort’s April 21 prediction, the only thing that Trump has “played” is Manafort as he dutifully lined up establishment Republicans who fell in line.

As uncomfortable as Trump’s statements have made those establishment Republicans, none has stepped forward to defend their candidate’s recent outbursts. None has repudiated his or her endorsement, either. Even as they decry Trump’s comments as deplorable, they implicitly suggest that his problem is speaking vile thoughts, not that he has them.

What Could Be Worse?

The same supporters rationalize their continuing support of Trump by assuring themselves that Hillary Clinton as president would be worse. They can’t possibly know that. Senator Bob Corker said that Trump — who turns 70 this month — “is going to have to change.” But change to what? Has anyone ever tried to change a 70-year-old billionaire’s fundamental beliefs, character, or behavior? Besides, Trump has made it clear that he has no desire to change. His approach has worked.

Corker’s position is a triumph of hope over reality. As for Trump’s positions, beyond divisive and destructive rants and branding tag lines –“We’ll make America great again” and “We’ll build a wall” — no one can state with confidence what they will be in five minutes, much less what they would become if he won the presidency.

Which takes us back to Paul Manafort, who assured RNC members in April that Trump was evolving. He went on to say, “Fixing personality negatives is a lot easier than fixing character negatives. You can’t change somebody’s character, but you can change the way a person presents himself.”

Either Manafort shares responsibility for encouraging Trump’s subsequent evolution, or he has an uncontrollable client. If it’s the former, he has put his candidate and his country on a treacherous course; he knows that from his legal training at Georgetown. If it’s the latter, his Trump-tarnished reputation will continue to deteriorate as he remains the campaign’s top strategist. Either way, he’s already lost. And so has the country.

6 thoughts on “ONE LAWYER’S DILEMMA

  1. Why spotlight Manafort rather than O’Melveny & Meyers, Trump’s counsel in that case? Law schools used to ban firms from recruiting if they did not hire women, represented Big Tobacco, etc–why does this firm deserve a free pass when they should have apologized and resigned already?

    This is worse than Gibson Dunn doing what a federal judge properly castigated as a whitewash at taxpayer expense of Christie’s GWB scandal.

    • You’ve conflated different points. Law schools that have banned or disciplined a firm for recruiting violations reacted to the law firm’s own improper conduct. O’Melveny & Myers lawyers haven’t engaged in misconduct; they’re representing a client who has made heinous remarks. Every day, attorneys represent far more despicable characters (See, e.g., Clarence Darrow’s representation of numerous guilty criminal defendants, including Leopold and Loeb). Under our system, someone has to perform that role. At some point, a client’s actions can force a firm to reconsider its willingness to represent that client. But that’s a different issue and involves a different calculus. The telling point is that there is a proper way to challenge a judge’s fairness — by filing a motion to recuse — and Trump’s lawyers haven’t followed that route.

      • Having admired your frequent incisive shredding of the bogus defenses of law schools which take advantage of students of limited means, I am sorry to find we disagree about the defenders of Trump University. You have conflated vastly different circumstances: (1) defending someone with unlimited resources and almost unlimited choice of counsel with needy defendants and (2) defending someone’s heinous remarks prior to the case with heinous remarks intended to bully the court of which the defense counsel are officers.

        Comparing Leopold and Loeb–neither of whom was even 20 years when they committed their crime and who were universally reviled–to Donald Trump, billionaire nominee of the Republican party for President with a fleet of other lawyers at his disposal?

        Why not portray O’Melveny & Myers as Atticus Finch defending Tom Robinson for their undaunted courage in bravely not filing a motion to recuse, which undoubtedly shows to at least .0001% of the electorate that his position is baseless and their bravery in accepting rich fees from someone who otherwise would have had only hundreds of other top law firms to help him defend himself for defrauding thousands of people far too poor to afford O’Melveny?

        Allowing a rich client to slander and threaten a judge–and by implication potential jurors and every Mexican judge (followed by slandering every Muslim judge)–to retain representation of a billionaire client is much closer to Darrow’s alleged attempt to bribe a juror in the McNamara case than his defense of the downtrodden.

      • I appreciate your kind comments on some of my prior posts. And perhaps we can find more points of agreement on this one than you suspect.

        First, Leopold & Loeb weren’t part of Darrow’s portfolio defending the downtrodden. They came from extremely wealthy Chicago families and, like Trump today, could have hired any “fleet of lawyers” in the country. They paid handsomely for Darrow’s services.

        Second, I’ve been assuming that Trump’s lawyers at O’Melveny & Myers are not “allowing” Trump to “slander and threaten a judge.” I think they have no control over him at all. No one does. When I’ve had such clients, I fired them. Everyone may be entitled to a lawyer, but not everyone is entitled to me. But each lawyer has to make an individual decision as to when that becomes an intolerable problem.

        That leads to a third point. You are certainly correct that a client’s actions can become sufficiently repugnant that other law firm constituencies — clients, law students, or even lawyers in the firm — decide that the client has become an unacceptable albatross. Where a law firm draws that line is its decision. (Of course, once a wealthy client such as Trump crosses it, another firm will happily step in and reap the revenues. That goes to larger problems relating to wealth distribution and the disparities in justice that result.) In Darrow’s case, he never had to resolve such questions with respect to Leopold and Loeb because his trial strategy — admit guilt, waive trial by jury, and plea to the judge for life sentences — coincided with his personal crusade against capital punishment. And he didn’t care what anyone else thought about his views on that issue.

        Thanks for the comments.

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