Monday, December 04, 2017

The Double Dog Dare

John Dowd, President Trump's personal lawyer, tells me that a Trump tweet that caused an eruption yesterday was "my mistake," made in a tweet he had drafted and passed to White House social media director Dan Scavino.

Which isn't the excuse some non-lawyers may think it is.  Think of it this way:  lawyers write letters for clients all the time.  A client needs to write a letter in response to an inquiry under a statute.  Seeking to comply with the law, the client has a lawyer draft a letter in response to that request which is signed by the client and sent on the client's letterhead.

Who is responsible for the content of the letter?  Both, right?  The lawyer, to the client; the client, to the recipient.  So does it matter that John Down wrote the e-mail?   Kellyanne Conway says that's what happened here:

“I was with the President on Saturday all day, frankly, and I know that what Mr. Dowd says is correct. What he says is that he put it together and sent it to our director of social media,” Conway said on “Fox and Friends.”

She said that it’s common for Trump’s lawyers to craft his tweets.
“The lawyers are the ones that understand how to put those tweets together,” she said.

In that case those lawyers are certainly responsible to the President for what gets tweeted (quick!  Which tweets are by lawyers and not Trump?), but the President is still responsible for what gets posted to @realdonaldtrump.  He puts his name on it, after all.

And yes, John Dowd apparently is a very stupid lawyer:

As his defense I guess Dowd can say Kellyanne did it, too.  This all leaves two similar questions in play.  The first has become familiar by now:  Why did Michael Flynn lie to the FBI?  The second is raised by this tweet:  why was it published?  If Dowd wrote it, who asked him to?  And what did Dowd, as Trump's lawyer, think would be gained by it?  Every lawyer knows silence is better than speaking, especially when there's no expectation you should speak, no question put to you that needs to be answered.

So what's the reason, legal or otherwise, to publish this tweet?  As Vox puts it:

Trump’s outreach to Comey looked bad already, even if he just knew that Flynn was under investigation (which he clearly did). But Trump’s interference looks even worse if, as the tweet says, he knew not only that Flynn was under investigation but that he outright “lied to” the FBI. He wouldn’t be just trying to protect an ex-aide who he thinks did nothing wrong — he’d be trying to argue that a guilty man shouldn’t face justice.

Dowd insists: "The tweet did not admit obstruction. That is an ignorant and arrogant assertion."  But that's the reason you tell your client to keep quiet:  because anything the client says might be construed against the client.

So why did Dowd put his client in jeopardy, rather than insist his client keep quiet?  If the client insisted on speaking, why did Dowd insist on writing such a poorly (in his words) drafted statement?

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