Living in Interesting Times

Fasten your seat belts folks. It’s war. I know Emmet—in fact, he briefed me during the Bush to Obama transition when I was coming in as special counsel & he was headed out. He’s one of the very best. This will be a fight for the ages. https://t.co/E7BjqxJGuE

— Norm Eisen (@NormEisen) May 2, 2018

Yeah, I don't know about that.  Oh, I don't doubt Mr. Flood's bona fides, but there are a few things to clear up about his appointment.

For one thing, he won't be the White House counsel.  That job is Don McGahn's, and interestingly, McGahn is a witness in the Mueller probe.  There is talk that McGahn is on the way out and Flood will replace him, but then Flood would be a federal employee and, as White House Counsel, have no attorney-client privilege with Trump.  This would keep him away from any involvement in the White House response to the investigation, as it has kept McGahn away.  And there's another problem:  Ty Cobb was in charge of the "special counsel" legal team (such as it is) handling Mueller's investigation.  Now Giuliani says he's large and in charge.  And yes, that presents its own problems:

“Look, we’ve talked a lot about Donald Trump’s lack of management style,” Deutsch said. “The Giuliani thing is interesting. We forget how, during the campaign, Giuliani was unhinged. If you show clips of him during the campaign, there’s a reason he didn’t get hired for all the jobs he wanted to.”

Deutsch, a former advertising executive who has known both Trump and Cohen for years, said the attorney disputes Giuliani’s account.

“I spoke with Michael Cohen yesterday, and his (account) about Giuliani was that he doesn’t know what he’s talking about,” Deutsch said. “He also said that, ‘Look, there are two people that know exactly what happened — myself and the president, and you’ll be hearing my side of the story,’ and he was obviously very frustrated by what had come out yesterday.”

Take that with whatever grain of salt you want to, but it's par for the course under a Trump administration.   It's hard to argue with Deutsch's characterization of Giuliani's behavior the past few days, behavior which no doubt delights Trump and which, not accidentally, has all occurred on cable TV.  But has it done Trump any good with Mueller?

No.

Giuliani is calling the Mueller interview a "perjury trap" in all but those words.  Of course there is no such thing; you tell the truth, you don't commit perjury.  It's perfectly clear to any sentient being that Trump doesn't even have a passing relationship with the truth.  He has told at least 3000 lies since taking office.  He has lied for decades about his net wealth, as David Cay Johnston notes.  A quick example Johnston points to speaks volumes on that simple issue, and it's connected to Giuliani and events of this week.  Little noted in the brouhaha about the Hannity interview is what Giuliani said about that payment to Stormy Daniels (and screw that tweeted explanation that it came from retainer fees paid to Cohen; that's squid ink to the ignorant.  If Cohen was getting paid to represent Trump, that's what the retainer was for.  Using that money for unauthorized purposes, like paying for silence, would be a violation of professional ethics that would cost Cohen his license.  The surest way to get disbarred is to mess with client funds you hold for them, like a retainer.  If the funding was authorized, then Trump knew all about it, and if that money came from retainer fees, how was Trump paying for Cohen's professional services?  The explanation is a tissue of lies.), is that Trump took months to repay $130,000.00.

Trump lawyer Michael Cohen “funneled it [the $130,000] through a law firm and the president repaid it,” Giuliani said, speaking with Trump’s advance knowledge.

“You’re going to do a couple of checks for $130,000,” Giuliani said.

The entity in the agreement is not identified as a law firm, but that's what I think Giuliani is referring to (he obviously doesn't know himself, which is reassuring in a lawyer representing a client).  And why, as Cohen notes, didn't Trump just write a check?  It's perfectly legal to do that, no bank reporting is required.  Those reporting rules apply to cash transactions, and trying to duck those reporting requirements is a crime itself; ask Denny Hastert.  But the why about the payment gets more interesting as Giuliani keeps talking:

 “When I heard Cohen’s retainer of $35,000 when he was doing no work for the president, I said that’s how he’s repaying — that’s how he’s repaying it with a little profit and a little margin for paying taxes for Michael.”

“The president reimbursed that over a period of several months,” Giuliani said.

So Giuliani figured out the strategy for explaining how Trump paid Cohen (which lets Cohen off the hook, supposedly, and gives him reason not to flip, presumably)?  Giuliani got the facts and crafted a legal defense to explain them?  I agree that's how lawyers do it; you just don't announce that in public, because it pretty much destroys the legal reasoning you are using to defend the action.  Legal reasoning is often ex post facto, but admitting that pretty much destroys that reasoning.  Giuliani's statement is barely separable from the old chestnut of the son who killed his parents asking mercy of the court because he's an orphan.  Giuliani is admitting he invented the defense that Trump did reimburse Cohen, when Trump did no such thing and probably never intended to do any such thing.  What's funny is now Trump will say that's what happened, because the truth is whatever serves his interests in the moment.

As Johnston asks, if this is what happened, why did it take several months?  Why didn't Trump just write a check and be done with it?  And was that $35,000.00 figure a monthly fee?  Pretty good retainer for doing nothing, which raises another professional ethics issue for Cohen (so, no, Giuliani is not handing Cohen a life line, he's throwing Cohen an anchor).  If it was monthly and Cohen wasn't doing any legal work, what the hell was Trump paying for?  Silence?

This is the guy in charge of Trump's legal defense, not Emmet Flood.  Flood may be a super-genius, but Giuliani claims to be the one negotiating with Mueller for the interview with Trump.  Trump may have a team of lawyers, but only one lawyer can speak for the client to the investigator, the court, even the public.  Right now Donald Trump wants that person to be Rudy Giuliani.  Until that changes, Trump could have the greatest legal minds of history on his team:  it wouldn't make any difference.