Innocent until proven guilty: Lawyering up doesn’t make Mike Pence or anyone else guilty

As a young corruption prosecutor, I urged the revered, white-shoed lawyer representing a politician under investigation to let me hear his client’s story (“I have an open mind. If he did nothing wrong, it can only help for me to hear his account.”) 

His answer was brief and colorful: “If I represented Jesus Christ himself, he would have taken the Fifth Amendment.”

 Just imagine: Jesus “lawyered up.”

As it turned out, the politician was entirely innocent, although he may have had some issues he wanted to keep to himself — a likely basis to decline an interview. But, in my unsophisticated view at the time, I couldn’t reconcile why, if innocent, he decided to lawyer-up.

The public, today, usually sees it that way.  

{mosads}Today, however, especially in the Age of Trump, if you will, we must view things differently. And not only in Trump-related investigations. No one likely to be questioned by law enforcement (particularly when investigating governmental conduct) should be willing to do so without counsel. This, despite the conclusions most laymen and certain journalists reach about it.

Indeed, all prosecutors know that witnesses “lawyer up”, and no prosecutor today questions the innocence of an individual she subpoenas or interviews merely because they retained counsel. 

Let’s take Vice President Mike Pence, for example. He has retained counsel anticipating questions from special prosecutor Robert Mueller and congressional committees.

The mere fact that he has retained counsel should come as a yawn. The public should not be surprised, and the press should stop making it look like a big deal, some even suggesting that he has something to hide or at least be concerned about.

It’s unthinkable that Pence won’t be questioned by Mueller or the Congress at least about former NSA Director Michael Flynn and the apparent lies Flynn told him.

Period.

Yawn.  

And let’s not forget, nowadays lawyers are retained for many reasons – not merely to legally protect a client. Indeed, the client may not need protecting. Counsel gives advice, sure. But he is also a go-between, and a spin controller.

And for any politician – especially an innocent one – spin may be key.

Particularly so in our era of leaks. Anyone questioned by a prosecutor would want his own witness — a lawyer with notepad in hand — to speak authoritatively to the press about the interview or testimony if leaked. 

Not to mention the public official’s need for a spokesman when hordes of journalists swarm him when he emerges from the grand jury, or a closed-door session with Congress. The lawyer is best able to avoid answering a press demanding to know what was said.   

And as to Pence, he will likely be questioned about conversations with the president.  Maybe Pence’s first reaction might be to answer. However, the president might wish to assert executive privilege. Now, the vice president doesn’t want to directly discuss executive privilege with the president.  That conversation by Pence, even with the president’s counsel, would likely not be privileged and might possibly be used later, as a link in an obstruction charge against the Trump. 

And, maybe, the vice president may disagree with the president’s views – he may believe the president is off the rails.  How to best present his thoughts, avoid presenting them, or at least shape them, might better be orchestrated with an experienced lawyer. A seasoned lawyer will help accomplish what’s in his client’s best interest –even if the vice president has no criminal exposure. And even more so if there is nuance that might raise a prosecutor’s suspicions, even if the prosecutor would be wrong in being suspicious.

Beyond that, and we use Pence as an example since his “lawyering up” has been in the news, the vice president would certainly want the president to know the questions and answers. Were he to report to the president, or even his attorney, those conversations would not be privileged, and the prosecutor could ask about them at grand jury.

However innocent, no vice president — indeed, no person — wants to be in that predicament.  Alternatively, if the vice president’s attorney describes the prosecutor’s questions and Pence’s answers to the president’s lawyer, Pence could not be compelled to testify to it.  

None of this suggests culpability on the part of the vice president, but rather the virtue of the guiding hand of counsel. And private counsel – not a White House-staff attorney – is ideal.   A staff-attorney’s allegiances are generally to the president and the institution of the vice presidency, not Pence – it becomes tricky. As we know from the Whitewater, White House lawyers were ordered to produce their notes of conversations with then-First Lady Hillary Clinton.

Further, President Donald Trump will possibly not only demand to be briefed about every prep session, question, document and answer. He may even tweet what he was told. As vice president — however innocent or loyal you are — would you want the president to know the substance of your confidential conversations with a White House attorney?

Don’t forget the dual roles of the government lawyer. 

Trump’s personal lawyer has been challenged for (reportedly) telling the president’s staff that it was too early to retain counsel. But his job is to protect the president. There’s a lesson there. Recognizing that loyalty, there’s wisdom in the vice president — or any other staffer — also retaining a private attorney whose job is likewise to look out for him alone, even with no reason to believe there is any criminal exposure.

This rule of the road, by the way, applies not only to the vice president, but to anyone likely to be questioned in an investigation. If you’re a corporate employee, high ranking or low, and however innocent, likely to be asked serious questions about the company, its directors or executives, make sure you have your lawyer willing to take your secrets to the grave. 

“Lawyering up” might be a dirty word on “Law & Order” or “Billions.”

But it shouldn’t be so in the real world where aggressive prosecutors, even if unintentionally, can make even an innocent’s life a living hell. 

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. An adjunct professor at Fordham Law School, he regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications and is the author of “Broken Scales: Reflections on Injustice.” Dale J. Degenshein of Stroock assisted in preparing this article and Broken Scales.

The views expressed by contributors are their own and are not the views of The Hill.