President Donald Trump has deep pockets to pay for personal lawyers to defend him from the evolving federal investigation into his campaign’s contacts with Russian officials. It’s a very different story for his staff.
White House aides bracing for subpoenas and grand jury summons have already begun making inquiries for legal help to navigate the unfamiliar terrain, according to lawyers who have been contacted, opening critical lines of communication in a bid to avoid serious harm to their reputations and careers, and perhaps even jail time.
“It can cost a lot of money,” said Peter Wehner, a former George W. Bush White House aide who was called in for a grand jury appearance in the investigation into the leak of CIA agent Valerie Plame’s identity. “Just for safety sake, even if you’ve done nothing wrong.”
Long-standing conflict of interest restrictions limit White House employees in many circumstances from accepting free or discounted attorney advice, and history is littered with examples of a president’s team buried under more than a hundred thousand dollars (George Stephanopoulos, under President Bill Clinton), if not millions (I. Lewis “Scooter” Libby, under President George W. Bush), in legal fees.
Trump aides who can’t afford a premier $1,500-per-hour white-collar lawyer on their government salaries have options. They can file for public subsidies, lean on their homeowners’ insurance or tap lawyer friends for pro bono help. But even then, veterans of White House scandals stretching back to the Ronald Reagan era say that some of the staffers who get caught in Special Counsel Robert Mueller’s crosshairs will want to start pinching pennies.
“Obviously for the people who have a lot of money and assets, some of these higher ups, it’s not a problem. It’s a problem for the lower downs who don’t,” said Stanley Brand, a white-collar attorney who represented Stephanopoulos, Clinton’s first White House press secretary, during the probe of the president’s Whitewater land deals.
As Mueller’s probe launches, Washington has been on a crash course relearning the rules of the road for how executive branch aides can fund their legal help, short of paying in full. The Washington Post reported Friday that an unnamed senior White House adviser is already a person of interest in the federal investigation into potential Trump campaign collusion with Russian hackers seeking to influence the 2016 presidential election.
The last guidance White House staffers had for setting up a legal defense fund dates to the opening of the Clinton era in 1993, though it was updated earlier this month to reflect it’s no longer in force. In response to POLITICO, an official at the Office of Government Ethics said it’s reviewing its policies on who can legally pay to help Trump aides with their representation in the growing federal investigation.
Trump himself is being urged to lawyer up. On Thursday, he convened White House lawyers and his longtime personal attorney Michael Cohen to talk about the basics of the investigation. Meantime, some of his own staffers have begun reaching out to lawyers to see if they’ll need counsel, according to an attorney who’s spoken to several of them. Former Trump aides Paul Manafort, Michael Flynn and Roger Stone have already hired personal attorneys.
“I do think people should be lawyering up,” said former Trump campaign aide Sam Nunberg. “Just being on the campaign trail with Flynn you have to lawyer up. The FBI doing its due diligence has to ask you about the contact and what he said to you.”
The White House — which declined comment for this story — has a general counsel’s office, led by Don McGahn, that’s available to the president and staff in the executive office of the president, though the attorney-client relationship does not apply to private matters outside the scope of their daily professional duties.
That leaves Trump staff to go elsewhere if they’re pulled into any of the ongoing probes involving the FBI, Mueller or Congress. For White House aides, the Justice Department in very limited circumstances can reimburse federal employees for their outside counsel in criminal cases if it’s “in the interest of the United States.” But the subsidies are rarely granted and usually well below what’s typically charged by a white-collar attorney.
Trump aides can ask friends or family for free or discounted legal advice — with the caveat they must detail that help as a gift on their next financial disclosures forms. They also can seek out lawyers who historically have charged their government clients lower fees — though that set up is often wrought with ethics restrictions. Law firms that have business before the executive branch — a category that covers some of Washington’s bigger legal operations — present conflict of interest challenges for White House staffers who would need to recuse themselves from the firm’s issues.
Reduced legal fees are also hardly a relief if the staffer must make multiple visits to a grand jury or have more than a cursory role in the federal investigation.
“Even at sharply discounted rates, and associates doing the work, it’s prohibitively expensive for a normal human being,” said Norm Eisen, the former chief ethics lawyer in President Barack Obama’s White House. “Its financially ruinous. It’s personally devastating.”
Staffers have another potential source of money: Legal defense funds, though even those are loaded up with ethics restrictions — including limits on funding from lobbyists who have business before the government — that make them cumbersome for Trump’s current staffers. They’re also hardly the most optimal approach for lower-tier staffers who don’t have the bold-face names known by donors.
“If someone like Steve Bannon set up a trust, I’m sure the contributors would be wealthy people. It’d not be online solicitations or anything,” said William Jeffress, a white-collar defense attorney who represented Libby during the Plame investigation.
Trump could pay for his staffers’ lawyers himself. Corporations frequently deploy this approach, and Clinton even suggested in a 1996 interview with CNN he’s do the same to help his aides under fire during Whitewater. “I am going to help them pay their legal bills if it’s the last thing I ever do and I stay healthy.”
But Clinton’s lawyers later talked him out of playing such a role. And the idea Trump would either write personal checks or urge others to donate money to his aides’ legal defense would raise conflict of interest concerns given the president would be raising money for a subordinate who’s a witness in a case that could implicate him.
“The optics would be terrible,” Jeffress said. “It appears you’re trying to influence the testimony of employees. It’s just a bad thing to do.”
Trump staffers who worked on his 2016 campaign but didn’t follow him to the White House have more options if they’re enveloped in the Russia investigation. Ethics and gift-related lobbying restrictions don’t apply to people who aren’t on the government payroll, making it easier for them to accept pro bono or reduced rate services.
Jake Siewert, a Clinton 1996 reelection aide when he was dragged into the special prosecutor’s investigation into foreign fundraising, said he got the Democratic National Committee to cover his legal costs because he was on the campaign payroll.
One option that’s off the table for Trump White House staff: Asking for direct reimbursements for their legal fees. That was possible before a Watergate-era law for special prosecutors expired in 1999. During that period, government employees had more than $4 million of their attorney fees reimbursed, including more than a half million dollars by President Ronald Reagan stemming from the Iran-Contra scandal, according to research by Kathleen Clark, an ethics and law professor at Washington University in St. Louis.
Conflicts-of-interest issues aren’t just a problem for Trump White House staffers looking for legal help. It’s already a problem for some of the law firms at the center of the Russia investigation.
Mueller left his job Wednesday at WilmerHale — the same firm that has been representing Manafort, Trump’s daughter Ivanka and his son-in-law Jared Kushner. In addition, former Sen. Joe Lieberman, who Trump has named as a front-runner to head the FBI, now works for the same New York-based law firm the president has long used for legal help, including in his defense of Trump University. Trump’s U.S. ambassador to Israel, David Friedman, is also a former partner at the firm, Kasowitz, Benson & Torres, and it’s where Cohen now has an office since leaving the Trump Organization in January.