- Hogan Lovells
President Donald Trump’s personal defense attorneys are apparently butting heads with the White House counsel as the FBI’s investigation into whether the Trump campaign colluded with Russia heats up.
The New York Times reported on Sunday that Ty Cobb, the white-collar criminal-defense attorney leading Trump’s outside legal team, had sparred with the White House counsel, Don McGahn, over how much to cooperate with the investigation, led by special counsel Robert Mueller.
During a lunch last week with John Dowd, a fellow Trump attorney, Cobb reportedly called another White House lawyer a “McGahn spy” and said McGahn had “a couple documents locked in a safe,” to which it appeared Cobb wanted access. A Times reporter sitting nearby overheard the conversation.
Cobb was explaining to Dowd that he wanted as many documents as possible to be turned over to Mueller, according to The Times, to speed up the investigation. McGahn, on the other hand, has resisted being too forthcoming because he thinks Trump will be able to assert executive privilege over many of their interactions.
It is unclear to which documents Cobb was referring. But one of them could be the original draft of a letter Trump wrote in May with his adviser Stephen Miller outlining his reasons for wanting to fire James Comey, the FBI director. McGahn heavily edited the letter, which he reportedly thought would be legally problematic, before a copy was given to the Justice Department. It was ultimately never sent to Comey.
The advice McGahn gave Trump about that letter – and the original draft – may prove pivotal in the investigation, which Mueller has expanded to include whether the president tried to obstruct justice by firing Comey.
“If he said anything along the lines of ‘There’s potential criminal liability if you shut down this investigation,’ that would be extraordinarily powerful evidence against Trump,” said Renato Mariotti, a former federal prosecutor.
Mueller’s team wants to interview McGahn and a handful of other White House staffers. But before fully cooperating with investigators, McGahn reportedly wants Cobb to tell him whether Trump is planning on exerting executive or attorney-client privilege over their communications, so he can establish which details he can divulge and which he cannot.
If McGahn is called to testify before a federal grand jury, however, his conversations with Trump may not be protected by attorney-client privilege.
A federal court of appeals ruled in 1998, at the height of the Monica Lewinsky scandal, that deputy White House counsel Bruce Lindsey had to submit to the special prosecutor’s questions about President Bill Clinton’s relationship with Lewinsky. In that case, the court held that there was no attorney-client privilege between a government lawyer and a government employee as it related to a grand-jury inquiry.
A pattern of indiscretion
At the restaurant in Washington, DC, Cobb also blamed another colleague for “some of these earlier leaks” and trying to oust Jared Kushner, Trump’s senior adviser and son-in-law, according to The Times. Kushner is also a subject in the Russia investigation, and Trump’s attorneys earlier this year mulled urging Kushner to leave the White House amid concerns over his Russia ties.
After The Times contacted the White House about Cobb’s conversation, McGahn “erupted” at Trump’s attorney, and John Kelly, the chief of staff, criticized Cobb for his indiscretion, the newspaper reported, citing people familiar with the matter.
This is not the first time in recent weeks that Cobb has invited scrutiny.
When Business Insider reached out to Cobb earlier this month with follow-up questions after he criticized an earlier article about Mueller’s obstruction-of-justice investigation, he asked the reporter whether she was on drugs.
In a later exchange with Jeff Jetton, an amateur Trump-Russia sleuth, Cobb defended his decision to join Trump’s legal team and appeared to refer to himself and Kelly as the “adults in the room.”
Cobb also mentioned the Russia investigation – which he called “bulls—” that was “totally political limiting Russian cooperation against” North Korea – and said he “walked away from $4 million annually” to join Trump’s legal team.
The next day, Business Insider reported that Cobb had engaged in a lengthy email exchange with a prankster posing as the White House social-media director, Dan Scavino, during which Cobb asked whether there was “any drone time left” when discussing a Business Insider reporter he described as “insane.”
Cobb did not respond to a request for comment on this story.