Thursday, June 1, 2017

Risk & Conflicts Updates (Presidential Edition)




Having recovered (mostly) from another amazing Inception experience (thank you to the enterprising reader who attempted the secret handshake!) we now return to our regular, semi-regular risk updates. Starting by catching up on various updates and allegations making news and stirring debate recently:

"Marc Kasowitz helped Trump through bankruptcy and divorce. Now he's taking on the biggest case of his career" --
  • "Now, President Trump is giving the $1,500-an-hour attorney a new assignment as his private counsel in the probe of Russia’s meddling in the 2016 presidential election. His hiring was first reported by Fox Business and ABC News."
Which played out in one way with: "Lieberman Withdraws From Consideration as F.B.I. Director" --
  • "Former senator Joseph I. Lieberman (I-Conn.) has withdrawn his name from consideration for FBI director. Lieberman cited the potential appearance of a conflict after President Trump hired his longtime attorney Marc Kasowitz — who is a partner at the same law firm where Lieberman is senior counsel — as his outside attorney in the ongoing investigations into Russian meddling in the 2016 election."
  • "'I have decided to withdraw my name from consideration for this nomination,' Lieberman said. 'With your selection of Marc Kasowitz to represent you in the various investigations that have begun, I do believe it would be best to avoid any appearance of a conflict of interest, given my role as senior counsel in the law firm of which Marc is the senior partner.'"
Next, ALM noted last week: "Robert Mueller, Jamie Gorelick and the Wilmer Problem" --
  • "Suddenly, it’s not so simple. Because until last week, Mueller was a partner at Wilmer Cutler Pickering Hale and Dorr—where his colleague in the firm’s Washington, D.C. office, a fellow member of both the strategic response and regulatory and government affairs groups, was Jamie Gorelick. Jared Kushner’s lawyer."
  • "That wasn’t such a big deal when Kushner was just President Trump’s son-in-law seeking assistance with conflict-of-interest issues and financial disclosures. Mueller didn’t personally represent him. But now, rumors are swirling that Kushner is the “significant person of interest” alluded to in a Washington Post report on Friday, “someone close to the president” under investigation for working with the Russians."
  • "If this is true—and I don’t know if it is; the best source appears to be New York magazine contributor Yashar Ali, who claims to have confirmed it with four people—it could present a substantial ethics conflict for Mueller."
Which was followed by: "DOJ: No ethics conflict for special counsel in Russia probe" --
  • "The Justice Department has determined that former FBI Director Robert Mueller's appointment as special counsel to oversee the federal investigation into Russian interference in the 2016 election complies with ethics rules."
But then this week the Washington Post notes (what some might call "the double yoink" maneuver): "The White House may claim Mueller has conflicts of interest. Oh, the irony." --
  • "But now the White House and its allies may be preparing to claim that former FBI director Robert S. Mueller III has conflicts of interest that prevent him from assuming his role as special counsel in the Trump-Russia investigation. Like so many of their other ethics claims, this one does not hold up."
  • "Their first argument is that Mueller must stand down from the investigation for at least a year because lawyers in the law firm from which he just resigned, WilmerHale, represent Jared Kushner and Paul Manafort, two people who may be involved in the investigation. It appears, however, that Mueller never represented either of these individuals nor obtained any confidential client information about either of them. Under the professional conduct rules of the District of Columbia, among the toughest in the nation on lawyers moving in and out of government, Mueller is free to leave the firm and, as special prosecutor, investigate and if appropriate prosecute either of these individuals represented by his former firm."
  • "Ironically, it is in just such a situation as the Mueller case — if the government officials involved are lawyers and therefore subject to bar ethics rules on the revolving door — that a conflicts waiver would be appropriate. If the White House were to resist granting such a waiver for Mueller and his staff while secretly approving waivers to lobbyists and others, that action would represent not only an abuse of government ethics rules but also yet another data point in an emerging pattern of obstruction of justice."
And on the related topic of legal service options: "West Wing aides brace for big attorney bills" --
"Longstanding conflict-of-interest restrictions limit White House employees from taking free or discounted legal advice, but aides who need lawyers have some options for getting help."
  • "Long-standing conflict of interest restrictions limit White House employees in many circumstances from accepting free or discounted attorney advice, and history is littered with examples of a president’s team buried under more than a hundred thousand dollars (George Stephanopoulos, under President Bill Clinton), if not millions (I. Lewis “Scooter” Libby, under President George W. Bush), in legal fees."
  • "Trump aides who can’t afford a premier $1,500-per-hour white-collar lawyer on their government salaries have options. They can file for public subsidies, lean on their homeowners’ insurance or tap lawyer friends for pro bono help. But even then, veterans of White House scandals stretching back to the Ronald Reagan era say that some of the staffers who get caught in Special Counsel Robert Mueller’s crosshairs will want to start pinching pennies."
  • "Trump aides can ask friends or family for free or discounted legal advice — with the caveat they must detail that help as a gift on their next financial disclosures forms. They also can seek out lawyers who historically have charged their government clients lower fees — though that set up is often wrought with ethics restrictions. Law firms that have business before the executive branch — a category that covers some of Washington’s bigger legal operations — present conflict of interest challenges for White House staffers who would need to recuse themselves from the firm’s issues."

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