Should Trump’s other former lawyer be speaking out?

Ty Cobb served as White House counsel before he and President Trump had a parting of ways, for reasons not completely clear. He certainly is a highly regarded attorney. The president, however, ideally would have wanted a more combative lawyer, with a style such as Rudy Giuliani’s, in dealing with special counsel Robert Mueller. However, Cobb clearly intended to act in the best interests of his client by urging full cooperation with the Russia investigation on the part of the White House and Trump.  

After all, if your client tells you that he’s done nothing wrong, and you believe it based on your review of the facts, full cooperation typically is the fastest way toward full exoneration. And bear in mind, this assumes that Trump shared privately with Cobb his unyielding mantra: “There was no collusion.”

{mosads}So, whether or not the president was being too strident about Mueller in his tweets, and in his references at rallies about a “witch hunt,” Cobb never said anything publicly to undermine the president’s position that he had done nothing wrong and deserved full exoneration as quickly as possible. Actually, engaging a conscientious white-shoe lawyer such as Cobb to counsel full cooperation in a very public investigation could go a long way toward helping persuade the public that counsel would only encourage full cooperation if the president had nothing to hide.  

In any case, Cobb was the paradigm of loyalty throughout his representation of the president, publicly expressing, in his quiet, dignified way, the party line of “let’s get to the finish line as fast as possible.” That way, the president could go forward and pursue his agenda. Still, throughout the period of Cobb’s representation — and, more importantly, thereafter — hardly a week has gone by without the president “defending” himself publicly,  arguing that he is the victim of those out to “get” him.

Trump portrays Mueller as an “Inspector Javert,” hell bent on an obsessive mission to get Trump.  Of course, such an attack on a prosecutor is not a legal defense but it may be a grand slam in the ballpark in which Trump is a home run hitter — that is, in influencing his base and, ultimately, convincing Republican senators to hang tough and vote in his favor if the president is ever impeached. And Trump would expect (rightly, I believe) no public disagreement with that position from his advocates, or former advocates.     

Yet, here comes Cobb, long after his Trump representation is over. He did complain in an ABC interview that he wished that the Mueller investigation “had happened on a quicker timetable.”  But he seemed to go out of his way to state his belief that the investigation is not a witch hunt, that he disagrees both with the criticism of Mueller’s probe and with Giuliani’s approach in “ratchet[ing] up the public’s concern about the investigation and its legitimacy.”  

Generally, after an attorney’s representation is over — no matter whose decision it was to terminate the relationship — the attorney departs silently. Obviously, he remains obliged to maintain confidentiality of any privileged communications with his client, or anything negative he might feel about the client as a result of the representation. As a purely ethical matter, mum’s the word.

{mossecondads}What happened here, though, is something different, perhaps in part because, as Cobb made clear, he represented the institution of the presidency and not the president. Yes, Cobb hasn’t publicly revealed anything privileged or negative about Trump and has said that the president totally approved full cooperation with Mueller’s team, in terms of documents. Nonetheless, he has, also, for reasons unclear — except, perhaps, to maintain his reputation —  somewhat undercut what the president has been trying to sell the public about his being a “victim of a modern-day Javert.”

The president hasn’t spoken publicly to this but, surely, he must be disturbed that his former advocate now is telling the world that the investigation Trump’s been crying about for two years is not a witch hunt. Wouldn’t any client in the same position be bothered by that?

Personally, I have no sympathy for the type of ad hominem remarks Trump has made about Mueller, who, to his credit, clearly takes them in stride. I believe that Cobb is a professional with an enviable reputation. But as a practicing lawyer, I wonder whether Cobb might better have kept to himself his views that Mueller is an “American hero” with a “backbone of steel.”

Cobb certainly wasn’t disloyal to Trump, but it’s worth underscoring that a lawyer should not express his views about his representation that are at odds with the client’s stated views, especially when revealing them may harm even a former client. And, lest it go unsaid, the distinction Cobb draws — that he was White House counsel or counsel to “the presidency,” not the president’s personal counsel — seems, in my judgment, too slender a reed for him to rely on. Indeed, the public likely won’t draw that distinction either.

And, most important here, any client putting himself in Trump’s shoes would want his former lawyer to keep his views to himself, unless they were completely in accord with his own. Makes sense, doesn’t it?     

Joel Cohen, a former state and federal prosecutor, 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.”