A single poorly timed conversation between two of President Trump’s personal lawyers may help special counsel Robert Mueller obtain documents that White House counsel Donald McGahn could have otherwise attempted to shield.
Ty Cobb, Trump’s personal lawyer inside the West Wing, and John Dowd, his top lawyer on the outside, touched off a firestorm of speculation last week when they discussed their frustrations with McGahn at a Washington restaurant in earshot of a journalist.
Their talk exposed a struggle between Trump’s personal defense team, which hopes to disclose as much as possible to expedite Mueller’s probe, and the White House counsel, which may look to preserve executive privilege in the face of mounting requests for documents and testimony.
During the lunch conversation between Dowd and Cobb last week that a New York Times reporter happened to overhear, Trump’s lawyers lamented McGahn’s protection of “a couple documents locked in a safe” that the two apparently wanted to access.
Cobb declined to specify during a brief phone interview on Friday whether those particular documents had been given to Mueller in the days since he referenced them in the lunchtime talk.
“Everything that is supposed to get to Mueller will get to him, I can assure you of that,” Cobb told the Washington Examiner.
But some legal experts have argued the revelation that McGahn had tucked “a couple documents” away from Mueller’s reach could increase the likelihood that Mueller ultimately obtains the records.
“The fact that the two documents were identified would certainly make a prosecutor focus on obtaining those documents if he wasn’t aware of them before,” said Jeffrey Jacobovitz, a white-collar lawyer who represented White House officials during the Clinton scandals. “It’s not clear whether McGahn and/or Trump intended to assert a privilege over those documents.”
Jacobovitz said Cobb’s public discussion with Dowd over issues related to their work in the White House was so unusual that he has considered whether the two lawyers planned to get caught discussing the documents.
“It’s a typical Washington conversation at lunch, but it’s unusual in terms of where it occurred, and one has to think whether they were actually doing it on purpose,” Jacobovitz said.
Jonathan Turley, law professor at George Washington University, agreed that the lunchtime indiscretion likely aided efforts to give Mueller the documents in McGahn’s real or figurative safe.
“The thrust of the story is that Cobb believed that the documents were material and was denied access,” Turley said. “A demand for the documents is now no longer speculative, and Mueller can ask McGahn to identify the documents in dispute.”
Turley noted McGahn and Cobb could have different interests at heart when approaching Mueller’s requests. The special counsel, who was appointed by the Justice Department in May, was originally tasked with leading an investigation into allegations that the Trump campaign colluded with Russians to influence the election. In the weeks since Mueller’s appointment, the probe has expanded to include the past business activity of at least one Trump associate, former campaign manager Paul Manafort, and could even have exhumed the financial history of Trump himself.
“Cobb is an experienced lawyer who sees this investigation as unlikely to produce any compelling basis for a criminal charge. McGahn is properly concerned with establishing precedent in the area of executive privilege that could undermine future presidents,” Turley said. “The lunch was a surprising incident and it raised some obvious suspicions of a calculated, but seemingly accidental, disclosure. Cobb is a bit too experienced in this town to make such an amateurish mistake.”
The president’s personal lawyer in the White House has made clear to colleagues and to Mueller that he would prefer to hand over as many documents as possible in order to hasten the end of the probe.
McGahn, on the other hand, has reportedly resisted unfettered access to White House documents for fear that doing so would erode the ability of Trump and future presidents to rely on executive privilege down the line.
If McGahn were to withhold any documents using executive privilege, however, he could invite a lengthy legal battle over which records meet the requirements for such protections and which must be handed over to investigators. The court battle over executive privilege assertions could take months, Turley said.
Mueller’s investigation has turned its attention increasingly to Manafort and the consulting work he performed for Kremlin-backed clients, including for a powerful Ukrainian politician with ties to Russia. FBI agents raided Manafort’s home in July on a search warrant and have reportedly warned Trump’s former aide that he will likely face an indictment.
The focus on alleged crimes only tangentially related to Russian election meddling have raised questions about the direction of Mueller’s investigation.
“It is certainly true that the investigation is now far afield from the original purpose of the investigation. However, special counsel investigations fit the military adage that ‘when all you have is a hammer, every problem looks like a nail,'” Turley said. “With a burgeoning staff and budget of prosecutors, Mueller is likely to pursue any cognizable indictment. An indictment also serves to strengthen his demand for documents and evidence when there is a pending criminal prosecution.”
Jacobovitz said the pace and scope of Mueller’s probe could foster a sense of fear among Trump’s team of lawyers as they attempt to grapple with the unknown.
“Right now, if you’re a defense counsel, there’s a lot of uncertainty as to who’s cooperating, who’s not, who has lawyers, who has spoken to Mueller,” Jacobovitz said. “There would be a lot of paranoia and uncertainty.”
