TRUMP AND THE MORGAN LEWIS MESS

On January 11, 2017, Sheri Dillon and Fred Fielding sullied themselves and imperiled the reputation of their firm, Morgan, Lewis & Bockius. They shilled for a plainly insufficient plan to deal with Donald Trump’s massive business conflicts of interest. In doing so, they traversed far beyond the principle that an attorney should advocate zealously on a client’s behalf. I predicted that Dillon, Fielding, and the firm would regret their roles in the charade. If they haven’t seen the light by now, they never will.

Lawyers Without Boundaries; Clients Without Shame

When it comes to dealing with Trump, ignorance of his tendencies affords his attorneys no excuse. Throughout his life, he has destroyed reputations whenever it helped him fulfill an agenda item of the moment. Once his allies outlive their usefulness — or whenever Trump needs a scapegoat — they become expendable. Remember the rumors about cabinet positions for Chris Christie, Rudy Giuliani, and Newt Gingrich? And how quickly Mike Flynn went from loyal patriot to dishonest traitor!

Trump’s January 11, 2017 press conference made for great theater as he claimed yet another victim. “President-elect Trump wants there to be no doubt in the minds of the American public that he is completely isolating himself from his business interests,” Dillon explained amid a mountain of paper. Some of the documents appeared to be blank and some of the folders lacked labels. Substantively, attorneys knew immediately that the Dillon/Fielding/Morgan Lewis plan was a joke. Every day, it becomes less humorous.

Trump Still Owns Everything

Dillon assured the public that Trump would put his business holdings in a revocable trust — meaningless window dressing. She didn’t mention he still owned and benefited from every Trump asset in his portfolio. And he wasn’t selling any of his most valuable ones involving the family business. Still, she explained, no one should worry because his sons, Eric and Don Jr., would run the company. Trump even joked that he’d return to management in eight years, hoping that they’d done a good job and saying that he’d fire them if they didn’t.

Har-dee-har-har-har.

Six weeks later, Eric Trump told Forbes that he would continue to update his father on the family business: “’Yeah, on the bottom line, profitability reports and stuff like that, but you know, that’s about it.’ How often will those reports be, every quarter? ‘Depending, yeah, depending.’ Could be more, could be less? ‘Yeah, probably quarterly.’ One thing is clear: ‘My father and I are very close. I talk to him a lot. We’re pretty inseparable.’”

It Gets Worse

On April 4, ProPublica reported — and Trump Organization attorney Alan Garten confirmed — that a February 10 version of the revocable trust agreement states: “The Trustees shall distribute net income or principal to Donald J. Trump at his request, as the Trustees deem necessary for his maintenance, support or uninsured medical expenses, or as the Trustees otherwise deem appropriate.”

The Trustees are Don Jr. and Allen Weisselberg, who started his career working for Donald Trump’s father Fred in the 1970s. In other words, Trump can watch his wealth grow and get at his money whenever he wants.

Fallout

At the time of the press conference, self-proclaimed law firm public relations experts urged that mere proximity to Trump would make Morgan Lewis a client magnet. At least one prominent client went the other way. The co-chair of the Wallace Global Fund expressed outrage over the firm’s willingness to aid and abet Trump’s undermining of democracy.

On March 28, H. Scott Wallace sent a blistering termination letter to Morgan Lewis chair Jami Wintz McKeon: “We believe that the legal advice given to [Trump] by your partner Sheri Dillon, in the January 11 press conference and background ‘white paper,’ is not just simplistic and ill-founded, but that it empowers and even encourages impeachable offenses and undetectable conflicts of interest by America’s highest official, and thus is an unprecedented invitation to corruption and an assault on our democracy.”

Wallace, a Villanova Law grad, walked McKeon through the patent defects in the Dillon/Fielding/Morgan Lewis conflicts plan. In great detail, he covered issues that I outlined in my three-part series on the plan’s inadequacies. And he added a few zingers:

  • “Ms. Dillon has legitimized a complete non-solution to Trump’s manifold conflicts of interest….”
  • “She adds a few window-dressing safeguards….”
  • “She absolutely denied the existence of any Emoluments Clause problems….”
  • “The result is an illusion of protection against the President using his office for personal gain. Trump’s entire life has been devoted to personal gain, not a moment to public service.”

Presidential corruption matters, and the Dillon/Fielding/Morgan Lewis plan facilitates it. As Wallace observed, “the ethical carnage is mounting”:

  • Just days after Trump reaffirmed the “one China” policy, it granted 38 new Trump trademarks.
  • Trump’s newly hired director of diplomatic sales at his DC hotel has enjoyed tremendous success in foreign bookings, including Azerbaijan, Bahrain, and Kuwait.
  • Trump’s bans on Muslin-majority nations excluded countries where Trump has business interests.
  • China’s government-owned bank is the single largest tenant in Trump Tower and the lease will come up for renewal during Trump’s presidency.
  • Since Trump’s election, initiation fees at Mar-a-Lago have doubled to $200,000.

Wallace could have added that Trump has yet to make good on Dillon’s promise to donate all Trump hotel profits from foreign governments to the U.S. Treasury. And his organization’s post-election success in registering Trump trademarks around the world has been phenomenal.

“It is painfully obvious that Trump is using his office for personal gain,” Wallace continued. “And Morgan Lewis is enabling and legitimizing this… Americans deserve a president of undivided loyalty. Your firm has denied them that.”

What’s Next? Nothing Good for Morgan Lewis

Here is my next prediction: more clients will fire Morgan Lewis. Corporate boards and CEOs will shun a firm willing to tolerate Dillon’s unprofessional performance on January 11. They’ll act on their belief that preserving critical norms of democracy should outweigh a firm’s desire to do almost anything for a client’s billable hour.

But the most discerning of general counsels will leave Morgan Lewis for an entirely different reason that has nothing to do with Trump, politics, the appropriate limits of a lawyer’s role as client advocate, or every attorney’s sworn duty to protect the U.S. Constitution. Substantively, the Trump conflicts plan is embarrassingly bad lawyering.

PRESIDENT TRUMP’S ATTORNEY GENERAL? — PART 2

Part 1 of this series discussed the possibility that, if Donald Trump wins the election, New Jersey Governor Chris Christie could become his attorney general of the United States. After all, he was the first major Republican presidential candidate to endorse Trump. With Christie’s popularity in his home state dropping to historic lows (now below 30 percent) and term limits foreclosing a run for another term as governor, he had to do something to salvage his political ambitions.

Sure, he didn’t get the vice-presidential nomination that he reportedly craved. But shouldn’t he reap some reward for his remarkable public scenes with Trump? In one, Christie appeared to be physically ill — or a hostage. In another, Trump mocked him to get a cheap laugh.

About That Bridgegate Thing

The prospect of Christie becoming the nation’s top law enforcement officer isn’t funny. The Bridgegate trial has resurrected old questions that a Christie-appointed independent investigator was supposed to answer almost three years ago. It has also raised new ones.

Christie has steadfastly denied having any knowledge about the George Washington Bridge lane closures before or during the 2013 scandal that culminated in criminal charges against his top aides. Some of those aides have now sworn that Christie knew more than he has admitted.

In that respect, they have confirmed Donald Trump’s declaration during a December 2015 Republican primary rally: “He knew about it. He totally knew about it.”

The Four Other Key Players

In a federal courtroom on September 27, 2016, a senior official at the Port Authority of New York and New Jersey (and Christie’s high school classmate), David Wildstein, testified that Christie knew what was happening on the bridge during the days that traffic was backed up for hours. According to Wildstein, so did Bill Stepien (Christie’s then-gubernatorial re-election campaign manager) and Bill Baroni (the governor’s top appointee at the Port Authority, which runs the bridge).

Another courtroom bombshell exploded on October 21, 2016, when Bridget Anne Kelly — who had replaced Stepien as Christie’s deputy chief of staff — testified that on August 12, 2013, she’d told the governor about the contemplated lane closings a month before they occurred.

Someone is lying. Donald Trump cast his vote: the culprit is Christie, the person who now heads his presidential transition team.

The Investigation

I’ve written previously about the independent investigation that was supposed to put all of this to rest almost three years ago. In January 2014, Christie – a former federal prosecutor with eyes on a 2016 presidential bid – tried to contain the growing scandal by appointing a respected attorney to investigate. He chose Randy Mastro, another former prosecutor, who had served as Mayor Rudy Giuliani’s deputy from 1993 to 1998 before returning to the New York office of Gibson, Dunn & Crutcher.

Mastro’s team included Debra Wong Yang, who had served as U.S. attorney for the central district of California. At a June 2011 event, she introduced Christie as her “very good friend” whom she had “known for ten years” – going back to their time together as federal prosecutors. Yang said he was “the real deal” and “doing a remarkable job as governor.” When Christie took the stage, he recalled how their families vacationed together at the game ranch of a fellow U.S. attorney in Texas.

“We are good and dear friends,” Christie said.

Only two months after the 2014 Gibson Dunn investigation began, Mastro released his final report. It identified Wildstein and Kelly as the Bridgegate villains, both of whom — along with Baroni and Stepien — had refused to speak with investigators.

The Moment

The report discussed briefly a key moment: the conversation that Wildstein said he’d had with Christie and Bill Baroni at a 9/11 memorial service in New York City – two days into the four-day lane closures. According to his attorney, Wildstein told Christie about the lane closures and resulting traffic problems in Fort Lee. Christie said he couldn’t recall any such conversation. The report dismissed Wildstein’s account as not credible.

The investigation was expensive, but not for Christie. Through August 2015, Gibson Dunn billed New Jersey taxpayers $8 million for its work. According to the Times, in December 2015, Debra Wong Yang, “co-hosted a $2,700-per-person fund-raiser in Los Angeles for Christie’s Republican presidential campaign.”

Days of Reckoning

Fast-forward to September 23, 2016, when prosecutors called Wildstein to the witness stand. Using photos showing Christie, Baroni, and Wildstein speaking together at the 9/11 event, Wildstein testified to their conversation. He said that Baroni began by telling the governor in a sardonic tone that “there was a tremendous amount of traffic in Fort Lee” and that Christie would be “very pleased to know” that the Democratic mayor of the city was “very frustrated.” According to Wildstein, Christie laughed at the news. Upon learning that Fort Lee’s mayor was placing urgent phone calls about the situation, Christie said sarcastically, “I imagine he wouldn’t get his calls returned.”

Christie responded immediately to Wildstein’s courtroom testimony.

“All kinds of stuff is going on up in a courtroom in Newark,” he said on September 27, 2016. “I have not and will not say anything different than I’ve been saying since January 2014. No matter what is said up there, I had no knowledge prior to or during these lane realignments.”

Subsequently, Bill Baroni took the stand and offered his version of the 9/11 memorial service conversation with Christie. He said that the photo of the three men laughing might have captured their joking about Governor Andrew Cuomo arriving at the event on a motorcycle with singer Billy Joel.

But then Bridget Anne Kelly testified to having informed Christie about the planned lane closings a month before they occurred in 2013. And she added a kicker: She said that the governor stopped by her office after the 9/11 event, and they discussed the ongoing Fort Lee traffic complaints. She swore that Christie told her that the Port Authority and Wildstein were handling the situation.

The Lesson

The judge instructed the Bridgegate jury that Chistie was among those about whom the jury had heard but would render no decision. Its verdicts can’t resolve the question of whether Christie has been telling the truth about what he knew and when he knew it.

But that open issue is less important than how all of this relates to Donald Trump. He believes Christie is lying. Yet Christie still chairs the Trump presidential transition team. And he could become Trump’s leading candidate for attorney general.

One more twist in the tale: On January 9, 2014, Christie announced that Bill Stepien’s conduct relating to Bridgegate had caused him to “lose confidence in Bill’s judgment,” so he fired him as gubernatorial re-election campaign manager. On August 26, 2016, NBC News reported that the Trump campaign hired Stepien as its national field director.

“I hire only the best people,” Trump says.

PRESIDENT TRUMP’S ATTORNEY GENERAL? — PART 1

Last week, I discussed Trump’s threats to sue his critics and the possibility that, when it came actually to filing a lawsuit, his lawyers’ overriding duties of professional responsibility became a restraining influence. Even so, the threats themselves — like those Trump reiterated on October 22 to sue any and all accusers who have or will come forward to confirm his boasts about being a sexual predator — have a chilling impact. If an accuser with a truthful story remains quiet, Trump wins without firing a shot or paying a filing fee.

Anyone who doubts the effect of even an idle Trump threat should consider the American Bar Association’s recent actions. The New York Times reports:

“Alarmed by Donald J. Trump’s record of filing lawsuits to punish and silence his critics, a committee of media lawyers at the American Bar Association commissioned a report on Mr. Trump’s litigation history. The report concluded that Mr. Trump was a ‘libel bully’ who had filed many meritless suits attacking his opponents and had never won in court. But the bar association refused to publish the report, citing ‘the risk of the A.B.A. being sued by Mr. Trump.'”

The Media Law Research Center posted the report.

If candidate Trump can achieve that type of chilling effect on the nation’s largest professional association of attorneys, imagine the impact of a President Trump who would select the country’s top law enforcement officer, namely, the attorney general of the United States.

Even Worse Threats

“You’d be in jail.”

Donald Trump interrupted Hillary Clinton to deliver that warning during their second debate. Moments earlier, he’d provided the context.

“If I win,” he said, “I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception. There has never been anything like it, and we’re going to have a special prosecutor.”

As Trump landed another blow against the rule of law, his supporters in the audience howled, “Lock her up” — a standard chant at Trump rallies.

The Gambit

The process for appointing a special counsel doesn’t give any president the power Trump says he’d wield. The last president to have any influence over a special prosecutor was Richard Nixon. Esteemed Harvard Law Professor Archibald Cox had the job, and it didn’t end well for Nixon or the country.

When Cox subpoenaed the president’s Oval Office tape recordings, Nixon ordered Attorney General Elliot Richardson to fire him. Richardson refused, so Nixon fired Richardson. When his successor, Deputy Attorney General William Ruckelshaus, likewise refused to discharge Cox, Nixon fired him, too. After Solicitor General Robert Bork was sworn in to replace Ruckelshaus, he executed Nixon’s command.

Eventually, the U.S. Supreme Court ordered Nixon to release the tapes. Nixon’s own voice proved his personal involvement in efforts to cover-up the 1972 burglary of Democratic National Committee headquarters – the Watergate break-in. The incriminating evidence led the House of Representatives to issue articles of impeachment. When it became clear that fellow Republicans in the Senate would provide enough votes to convict him, Nixon became the first U.S. president to resign his office.

The “Saturday Night Massacre” that cost Richardson, Ruckelshaus, and Cox their jobs led Congress to enact the Ethics in Government Act of 1978 that removed the president from the independent prosecutor process. In 1999, the legislation lapsed under a sunset provision. Today, the Code of Federal Regulations – which has the force of law – governs. The decision to appoint a “special counsel” to conduct investigations or prosecutions of particular matters on behalf of the United States belongs to the attorney general, not the president.

The Executioner

Nixon’s appointees, Richardson and Ruckelshaus, lost their jobs because they refused to do Nixon’s bidding. Trump’s attorney general would have to embrace his illegal post-election assault on a political adversary. To fulfill his banana republic-like promise to imprison a political opponent, Trump would need someone who bowed unquestioningly to his wishes.

Who might use the power of high office for such retribution? There’s an obvious candidate: New Jersey Governor Chris Christie. After all, at the Republican National Convention, he prosecuted the case against Hillary Clinton and invited the audience to roar, “Guilty.”

As for a willingness to use political power for payback, Trump has a favorable view of Christie, too.

“He knew about it,” Trump said during a Republican presidential primary rally in December 2015. “He totally knew about it.”

During a December 2013 news conference, Christie had staked out a different position: “I didn’t know anything about it.”

The “he” was Christie. The “it” was Bridgegate.

The Scandal

On September 9, 2013 – the first day of the school year in Fort Lee, New Jersey – commuters to New York City found themselves in a traffic jam on the George Washington Bridge. Without advance notice to local officials, the Port Authority of New York and New Jersey reduced from three to one the number of lanes and tollbooths available to vehicles accessing the bridge from Fort Lee.

Even by New York standards, the resulting gridlock on the world’s busiest bridge was monumental. Some motorists were stranded for hours. Public health and safety became serious concerns. Was it just a coincidence that the Democratic mayor of Fort Lee had refused to endorse Christie for a second term as governor?

As the debacle developed, what did Governor Christie know and when did he know it? Senator Howard Baker had made a similar question famous during the Watergate hearings, and it still resonated.

The next installment in this series will take a deeper dive into the criminal trial that has inflicted significant collateral damage on Christie — the head of Donald Trump’s presidential transition team.

“BRIDGEGATE” TAKES A STRANGE TURN

Chief Justice John Roberts’ annual report on the state the federal judiciary reminds lawyers of their obligations to “avoid antagonistic tactics, wasteful procedural maneuvering, and teetering brinksmanship.” I wonder what he thinks of the “tactics, maneuvering, and brinksmanship” surrounding the latest chapter of “Bridgegate.”

Four Days in September

In 2013, the mayor of Fort Lee, New Jersey refused to endorse Governor Chris Christie’s re-election campaign. In apparent retribution, Christie’s deputy chief of staff Bridget Anne Kelly sent an email to David Wildstein, Christie’s appointee at the Port Authority of New York and New Jersey.

“Time for some traffic problems in Fort Lee,” Kelly wrote on August 13.

“Got it,” Wildstein replied.

On Friday, September 7, Wildstein followed-up: “I will call you Monday AM to let you know how Fort Lee goes.”

Everyone knows how Fort Lee went on Monday, September 10. The Port Authority closed two of three local access lanes on the upper level of the George Washington Bridge. Four days of gridlock near the town continued until September 13, when the Authority’s executive director (a Governor Andrew Cuomo appointee) ordered the lanes reopened.

Getting Ahead of One Story

Several months later, the Kelly-Wildstein emails surfaced. Immediately, Republican presidential hopeful Christie did the fashionable thing: nip a growing scandal in the bud by hiring a respected outside lawyer to conduct an internal investigation. He chose Randy Mastro, former chief of staff to New York City Mayor Rudy Giuliani. According to the firm’s website, Mastro is a partner and member of the management and executive committees at Gibson, Dunn & Crutcher, current winner of The American Lawyer’s biennial “Litigation Department of the Year” contest.

Christie promised that Mastro would “bring an outside, third-party perspective to the situation” with a “thorough” and “efficient” internal investigation. Gibson Dunn certainly had the firepower to accomplish that mission. Its Bridgegate team included five former federal prosecutors with “experience in internal investigations and criminal cases.” The state of New Jersey picked up Gibson Dunn’s tab. For the first three weeks of work, it charged $1.1 million.

Just two months after the investigation began, Mastro released Gibson Dunn’s final report and provided final witness summaries to the U.S. attorney and the New Jersey Legislative Select Committee on Investigations. The report exonerated Christie.

The New York Times described the ensuing press conference: “The former federal prosecutor who led the internal inquiry, Randy M. Mastro, frequently sounded like a defense lawyer making his case to a jury. He referred to Ms. Kelly as a liar, cast doubt on the credibility of the mayor of Hoboken, who accused the Christie administration of political intimidation, and slipped into lawyerly exhortations to the ‘ladies and gentlemen’ sitting before him.”

While Creating Another Story

On May 1, 2015, Wildstein agreed to plead guilty and cooperate with the government’s prosecution of Kelly and Port Authority deputy executive director William Baroni, Jr., both of whom were indicted. On May 27, lawyers for Kelly and Baroni sought court permission to issue subpoenas to Gibson Dunn for any notes, transcripts, and records that the firm had in connection with its investigation and report. Over Gibson Dunn’s objection, the court granted the motion.

After the subpoenas went out, Gibson Dunn objected again. It also responded that no such notes or recordings existed — none — and moved to quash the subpoenas as moot.

Defendants’ exasperated lawyers complained, “Gibson Dunn claims that it billed New Jersey taxpayers nearly $10 million but not a single lawyer took a single note during 75 interviews in the most high-profile political case in recent years.” (The court noted that the actual amount billed seemed to be about $8 million.)

The Court Was Not Amused

On December 16, 2015, Judge Susan Wigenton — a George W. Bush appointee — sympathized with the defendants’ frustration. She also explained what troubled her about Gibson Dunn’s position.

“Attorneys are trained to scrupulously document information when conducting internal investigations, including taking and preserving contemporaneous notes of witness interviews,” the court wrote in a ten-page opinion. “In the past, Gibson Dunn has done exactly that.”

But not for Bridgegate. Judge Wigenton chided the firm for “intentionally changing its approach in this investigation.” In particular, the affidavit of Gibson Dunn partner Alexander Southwell confirmed, “[W[itness interviews were summarized electronically by one attorney and then edited electronically into a single electronic file.”

The judge described the significance of that technique: “The practical effect of this unorthodox approach was to assure that contemporaneous notes of the witness interviews and draft summaries would not be preserved. Rather, they would be overwritten during the creation of the revised and edited final summary.”

Noting that the firm didn’t delete or shred documents, the judge observed that “the process of overwriting their witness notes and drafts of the summaries had the same effect.”

“This was a clever tactic,” Judge Wigenton continued, “but when public investigations are involved, straightforward lawyering is superior to calculated strategy. The taxpayers of the State of New Jersey paid Gibson Dunn millions of dollars to conduct a transparent and thorough investigation. What they got instead was opacity and gamesmanship.”

Gibson Dunn argued that defendants’ underlying motion was a “fishing expedition” and “a waste of time and judicial resources.” Defendants were “targeting a law firm’s work product, already knowing that most of what they seek does not exist…”

Nevertheless, what the court characterized as gamesmanship worked. The firm had no documents to produce, so the court granted Gibson Dunn’s motion to quash.

One More Thing…

The latest twist in the Bridgegate tale involves Debra Wong Yang, whom President George W. Bush appointed as U.S. attorney for the central district of California in 2002. In November 2006, Yang left the bench to become a partner at Gibson Dunn & Crutcher. The firm’s website notes that she works out of the Los Angeles office and has served as a member of the firm’s executive and management committees.

In a glowing introduction of Governor Christie as the keynote speaker at an event on June 9, 2011, Yang described him as her “very good friend” whom she had “known for ten years” — going all the way back to their time together as federal prosecutors. She said Christie was “the real deal” and “doing a remarkable job as governor.”

When Christie took the stage, he described how their families once vacationed together at the game ranch of a fellow U.S. attorney in Texas. “We are good and dear friends,” Christie said of Yang.

Fast-forward to Bridgegate

Here’s a summary of interesting events that followed:

—  According to the The New York Times’ review of Gibson Dunn billing records, two days after Christie hired the firm to investigate Bridgegate in January 2014, “Debra Wong Yang, a Gibson Dunn partner in California and a personal friend of of Mr. Christie’s, spent time in ‘meeting with client’ – Mr. Christie and his top lawyer in the governor’s office.”

— Gibson Dunn’s army of former federal prosecutors — including Yang — departed from the usual documentation process so that when the firm completed the investigation, no notes, transcripts or recordings of interviews existed beyond the final summaries provided to federal and state investigators.

— After Gibson Dunn’s report exonerated Christie, the firm continued working at taxpayer expense. According to the Times, it billed the state of New Jersey a total of $8 million from January 2014 through August 2015 “for the continuing defense of the governor.”

— Wholly apart from the dispute over what turned out to be Gibson Dunn’s non-existent internal documents relating to its investigation, on November 11, 2015 attorneys for Kelly and Baroni filed additional motions. They asked the court to direct the government to take a closer look at the adequacy of Gibson Dunn’s earlier document productions to the federal grand jury. Claiming that prosecutors should have challenged the firm’s disorganized and inadequate discovery responses, Baroni’s motion levels this accusation: “The government has given Gibson Dunn free reign to withhold and redact documents as that firm sees fit, as well as to produce documents in an abominable format.”

— Finally, according to the Timesin December 2015 Debra Wong Yang “co-hosted a $2,700-per-person fund-raiser in Los Angeles for Christie’s Republican presidential campaign.”

In an exclusive interview hours after Mastro released Gibson Dunn’s March 2014 report, the governor told ABC’s Diane Sawyer, “Sometimes people do inexplicably stupid things.”

Then again, sometimes things may not be as stupid as they first seem.