The duty of loyalty would be different if Bannon had been Trump’s lawyer

Lawyer jokes are plenty and we take our hits like no other. The truth is, lawyers suffer abuse largely because we’re held to our own rules of engagement, which are legal ethics. They prevent us from betraying clients. In lay terms, lawyers have a duty of loyalty to clients, and also, to past clients.

Even if the client dismisses the lawyer or the lawyer voluntarily resigns, a code of silence must prevail. The lawyer does not only keep the client’s confidences to himself, but also the lawyer’s advice — regardless of whether it was accepted.

{mosads}Moreover, even if he is disappointed with the client the lawyer may not ethically bad-mouth or oppose the client in matters on which he once received information. Loyalty isn’t just a word — it’s a code of conduct lawyers must live by.   

A president should have reason to expect that his advisers, lawyers or not, will similarly remain loyal. Think about President John F. Kennedy. Surely his advisers disagreed with him, or even became disenchanted with his views or actions.

Yet, no adviser came out of the woodwork, disclosing his foibles or shortcomings, or publicizing disagreement with his policies. However, those were different times, and Kennedy was different. He achieved loyalty because he extended it, not because of any obligation as would be in the case of legal counsel. The American people and President Trump simply cannot expect that kind of allegiance anymore, and certainly not from Steve Bannon.

No one expects Steve Bannon to abide by the past’s rules of the game now that he has left — or been fired by — the White House. He made it clear upon returning to Breitbart that he is fully willing to attack the president if he deviates from campaign promises.

Bannon has already done so with some Breitbart articles: Trump’s ‘America First’ Base Unhappy With Flip-Flop Afghanistan Speech and His McMaster’s Voice: Is Trump’s Afghanistan Policy That Different From Obama’s?

One might ask if Bannon, who is not a lawyer, would be free to disclose on Breitbart: the president told me, or I told him. After all, isn’t it his First Amendment right to say what he wants? Maybe.

However, if Bannon were subpoenaed by Congress, the president could theoretically invoke executive privilege, or at least try if the information sought was made in the performance of the president’s duties in shaping policies and making decisions.

In that case, the president could — in that hallowed space before a congressional committee — overrule Bannon’s willingness to testify to communications. Although, it is unclear if executive privilege would apply if Bannon is subpoenaed to a grand jury.

Consider this: Speaking out in the media seems different from testifying. So assume Bannon wanted to speak to the press before he was subpoenaed. Absent a court order, nothing would stop him, even if the President asks or directs him not to.

What if the president successfully asserts executive privilege so that Bannon cannot testify. Can Bannon then — without a court order — tell the press what he was prohibited from telling Congress? It’s less clear, but maybe.

Suppose Bannon had been the president’s lawyer, performing as a lawyer, not a policy maker, in imparting advice. The president could quash Bannon’s ability to testify to confidential interactions with the president as long as they did not implicate “crime-fraud” – advice given to commit a crime. Also, at penalty of losing his law license, Bannon could not ethically disclose those conversations to anyone without the client’s permission. Under this scenario, Bannon would need to take Trump’s confidences to the grave so that any direct or indirect disclosure would be verboten.

Does this mean that a president should make sure that his advisers are lawyers, which would force them to remain silent?” Of course not. Besides, not every communication with someone who happens to be a lawyer is privileged. If Trump, for example, were to have asked Reince Priebus, an attorney, for how best to get Sen John McCain (R-Ariz.) to vote to repeal and replace, he wouldn’t be seeking legal advice, and that conversation would not be privileged.

Contrast this to Jay Sekulow, Marc Kasowitz, John Dowd and Ty Cobb, all Trump lawyers —though privately retained. In the likely event that one or more are fired or voluntarily leave his service, they may not disclose their confidential communications with the president, without his permission,before the Congress, the grand jury, the media or anywhere. Probably a good thing for the president.

Now, if called to testify and executive privilege is not invoked or it is rejected by the court, the adviser must testify. That is not an act of disloyalty, that disclosure is legally required. The act of disloyalty inheres in a voluntary disclosure, without seeking presidential authorization, to a governmental body or to the media. And once the information is public, given our internet world it will remain available to all, and always.

This is not to say that a president should hire only lawyers, who are ethically bound to refrain from speaking out, as his advisers; far from it. But presidents must select their advisers carefully, and hire people who will actually demonstrate loyalty no matter the current (or future) state of affairs. Trump deserves the kind of allegiance that ensures the adviser doesn’t hold his own press conference when he disagrees with the president. At the end of the day — loyalty, a trait the president purports to praise so highly — is the only thing protecting a president from a non-lawyer adviser speaking out.

Joel Cohen is a former state and federal prosecutor He practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is 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 is a special counsel at Stroock & Stroock & Lavan LLP.

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