Are tactics that deprive the disfavored of the specialized legal representation needed in complex cases something to celebrate?

As discussed elsewhere, the House Intelligence Committee’s impeachment investigation’s subpoena for Trump’s personal lawyer Rudy Giuliani is reminiscent of the ‘get-it from-the-lawyer’ tactic Robert Mueller so successfully used in his Russia investigation. Are we seeing more of such tactics migrating to the impeachment process?  And even if they are used against the disfavored in our society, should we still be celebrating them?

Some context: In 2017 the Washington Post pointed out Mueller made clear he was “willing to use suspects’ lawyers to provide evidence against them.”  This tactic (by design?) rather plainly chills and unsettles the counsel-counselee relationship those targeted by an investigation need by injecting uncertainty and even fear into the minds of both lawyer and client.

I also believe that circumstance – along with Mueller’s “logistics” and “parallel operations” tactics discussed below – debilitated the ability of his often-despised targets to get and keep the specialized legal representation they needed. 

The same thing could happen again with the Committee’s investigation as it expands to call additional witnesses, any one of whom could find themselves targets in criminal probes, particularly for sometimes highly-technical process crimes that formed the centerpiece of most of Mueller’s criminal referrals.

The question is this: are norms developing that effectively make the right to legal representation little more than an illusion for unpopular targets in complex and costly cases?  

To ponder the answer, let’s unpack a bit what happened to targets in Mueller’s investigation.

The “legal logistics” tactic in complex cases

Mueller’s access to virtually unlimited funds (he spent $32 million) and his power to pick “all-star” legal talent for his team gave him an enormous advantage over what even his more affluent targets could muster in their defense.

Mueller, a former Marine, appears to have embraced the military axiom of amateurs talk strategy, professionals talk logistics enunciated by Marine General Robert Barrow in 1979.  The “logistics” in this instance was the target’s ‘supply’ of legal representation.  As it turns out, Mueller was frequently able to overwhelm his targets’ ability to marshal the means to begin to counter the vast resources he had at his disposal.

The need for a qualified “guiding hand of counsel at every step in the proceedings”

It really isn’t supposed to be this way.  In Gideon v. Wainwright the Supreme Court cited a passage from Powell v. Alabama which eloquently discusses the Sixth Amendment right to counsel.  It explains that the “right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.”

Critically, the Court added that “[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law…[and] requires the guiding hand of counsel at every step in the proceedings against him.” (Emphasis added.)

But Gideon was focused on the right to counsel for indigents, and did not really anticipate today’s lengthy and convoluted investigations that generate what Vice News calls insane legal bills which can drain the bank accounts of even the well-to-do.  As the Daily Beast observed in 2017, “[h]iring the high-powered Washington lawyers necessary to respond to a deep-dive Justice Department investigation can be extraordinarily costly.”

Yet the “guiding hand of counsel at every step in the proceedings” that the Supreme Court highlighted in Powell was what was especially needed by the Mueller targets.

Why?  As noted above, most of the charges Mueller lodged against Americans were for process crimes such as lying to a questioner during the investigatory “step in the proceedings,” not for some underlying criminality.  Clearly, specialist legal counsel is especially indispensable when being interrogated by a bevy expert government agents and top prosecutors.

The financial (and other) devastation of the ‘smaller fish’ who were never charged

Obviously, few people – and especially the ‘smaller fish’ to include frightened but innocent witnesses – have the financial ability to counter the kind of prosecutorial onslaught Mueller’s army could mount.

And that “army” was formidable as it included 40 FBI agents, 19 prosecutors and various support staff including intelligence analysts.”  Can any individual counter that kind of prosecutorial might?

In a 2018 story entitled Trump’s allies are drowning in legal fees from the Russia probes” CNBC pointed out that “[b]ecoming ensnared in a federal investigation into the links between Donald Trump‘s presidential campaign and the Kremlin can pose a serious financial threat for those involved at any level.”  (Emphasis added.)

It’s important to remember that those who were never charged but nevertheless caught up in some way in Mueller’s blitzkrieg still suffered greatly, to include financial devastation.  Michael Caputo, the former Trump campaign communications aide, told Vice News in 2018 that “I don’t make enough money to withstand an onslaught from the federal government,” and reported that the “legal fees were suffocating.”

“Between $20,000 and $30,000” in legal fees to prepare for a single Congressional hearing; more for an interrogation session 

Of particular relevance to the ongoing impeachment hearings, consider Caputo’s report that preparing for the Congressional hearings that took place in tandem with Mueller’s investigation cost “between $20,000 and $30,000” each in legal fees.  He added that getting ready for an interrogation session with Mueller’s team was “even more expensive.”

After surviving the Mueller investigation without being charged, Caputo wrote in Politico last March about how he “lost most of [his] clients, lost staff, closed offices, nearly lost [his] home, drained [his] children’s college fund and struggled to pay the smallest bills.” These are some of the consequences he says “will sound familiar to my Original Trump friends also caught up in this mess.”

Among others, Caputo discusses J.D. Gordon, a retired U.S. Navy commander who was “caught up in this mess” but never charged:

“Gordon was interviewed multiple times by several investigations. His legal costs were significant; the blow to his communications business was even more so. But the far greater cost was his inability to serve in a senior Trump administration post. A surefire pick for a senior role in the national security team, he was cut off from working in the administration. This was a great loss for our nation.”

“Fighting criminal charges lodged by Mueller could easily cost over $1 million”

According to the Washington Times, as of last April, Gordon has “five-figure legal bills,” and he says he’s “still in debt.”  But those actually charged were put in an even tougher financial predicament.  Vice News reports:

“Fighting criminal charges lodged by Mueller could easily cost over $1 million, white-collar defense attorneys told VICE News. The cheaper approach, pleading guilty and seeking a deal, may still cost hundreds of thousands of dollars, with qualified white-collar defense attorneys charging anywhere from $500 to over $1,000 per hour.”

It is not surprising then that the de facto ‘logistics’ strategy of the Mueller team effectively wore down some targets leaving them with little choice but to resort to the “cheaper approach,” the much-criticized plea bargain system.  Vice News says:

“There are times when people plead guilty because they just don’t have the money to go on,” said Renato Mariatti, a former federal prosecutor turned defense attorney. “It can have a very significant, if not determinative, role in case strategy.”

Is it a proper goal now to attack and deplete the resources of individuals until the accused surrenders with a guilty plea (even if they may not be)?

Even the resources of the well-to-do are not limitless

The once-wealthy Paul Manafort, the Washington Post reported last year, was struggling to pay his legal bills,” and had to set up a legal defense fund to solicit help.  The sheer cost of organizing a legal defense also enabled Mueller not only to put pressure on his targets, but also the families.  The Daily Beast pointed out:

“Manafort isn’t the only person facing financial challenges because of the legal costs of responding to Mueller’s probe.  Michael Flynn, the retired general and deposed National Security Adviser, is struggling mightily with his mounting legal bills, according to a source familiar with his situation. The expenses [have] put his family’s finances under significant duress.”  (Emphasis added.)

The Mueller team’s ‘spin-off’ case involving former Trump attorney Michael Cohen is another example of the staggering cost of an individual’s defense in these kinds of cases.  In 2018 the Wall Street Journal reported Cohen said legal fees were “bankrupting” him, and it isn’t hard to understand why.

For just six days work, the special master appointed by the court to look for attorney-client privileged material among the thousands of communications seized by Federal authorities in a raid on Cohen’s law office charged him $47,390 – almost $8,000 per day, and that’s just for the special master.

But it proved to be only the start: in June of 2018 the special master slapped [Cohen] with a new $338,421 legal bill.”  In August of that year Voice of America reported that Cohen was “broke” and that his lawyer was saying Cohen was “without resources and owes a lot of money.”  Soon thereafter Cohen was cooperating with Mueller.  In early 2019 Cohen was disbarred and would make it clear he was willing to reveal virtually anything in an effort to stay out of jail.

The effect of the tactic of “parallel operations” on the ability to obtain specialist legal representation

Mueller’s abundance of resources enabled him to employ a related tactic that affected legal representation, and it involved using the considerable size of his prosecutorial army to go after multiple targets simultaneously.  This evokes the military concept of “parallel operations” which are those that apply pressure at many points across an enemy’s system in a short period of time to cause maximum shock and dislocation effects across that system.”  In terms of the impact on the ability of Mueller’s targets to even find representation at any price, consider this 2018 CNN report:

“Even in a city [Washington] with such a sizable legal industry, so many top lawyers and large law offices with white-collar and national security specialists have already been hired by witnesses, subjects and companies involved in the Mueller probe.  Thus, few in town can take new clients at the center of it.”

Finally, Mueller used his prosecutorial power to extract the ultimate, viz-a-vis the legal presentation of anyone targeted by government: the abandonment of legal counsel entirely.  In the plea agreement with Paul Manafort he demanded that Manafort undergo interrogations “outside of the presence of counsel.”  Such interrogations in the absence of counsel clearly enhance the ability of clever investigators to induce more “process” offenses.  Is it legal?  Yes.

But do we want the government to be using this kind of tactic to pressure suspects to waive their right to counsel?  You decide.

Of course, the understandable passion of some people to ‘get Trump’ may lead them to think any tactic that may dislodge or disrupt his legal representation or those of anyone associated with him is warranted and even commendable.  After all, putting Trump aside for the moment, Manafort, Cohen, and some of the others Mueller and his team convicted hardly have a public image that paints them as likeable or sympathetic.  Moreover, none of Mueller’s tactics have been shown to be illegal.

So what’s the issue?  The long-term effect

Shouldn’t we be mindful that norms and precedents being solidified today will also be available – and applied – to others in the future?

In my view, we need to separate partisan inclinations from the potential long-term effect of what has transpired as it may serve to increase an already skeptical public’s wariness about the trustworthiness and ethics of the legal profession.   Of course, everyone wants effective and aggressive investigations of criminality, especially if it exists at high levels of government.  Yet to what lengths should that effort go?

Shouldn’t we want even the most disfavored in our midst to still get a legal defense able to deal with the enormous resources that the government can now marshal against individuals?  Or should we continue to sanction approaches that can frustrate the ability of politically-unpopular people to get the legal representation they so demonstrably need?

Put another way, is qualified legal representation realistically available for all who may be caught up in the world of complex investigations mounted by highly-resourced teams of government prosecutors?  Or is such legal representation only for the popular now (or those less subject to social media onslaught and public ridicule)?  

No ‘pro bono’ representation for today’s disfavored clients

As I’ve noted before, it’s hard to believe that as recently as 2007 the Washington Post was trumpeting the idea that “[m]ost Americans understand that legal representation for the accused is one of the core principles of the American way.”

Indeed, the Post went on to praise the many high-powered law firms who were providing millions of dollars’ worth of free legal services to the terror suspects – to include some who admitted involvement in the deadly 9/11 attacks – as “upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants.”

That “ethical tradition” seems, however, to be in decline these days as not only are top law firms not lining up to represent today’s most-shunned defendants, even the American Civil Liberties Union no longer is the bulwark it once was for “the most unpopular of defendants” (see, e.g., here).

Let’s ask ourselves this: is legal representation still, as the Post put it, really “one of the core principles of the American way” applicable to those in need of it – even if they are reviled by many in our society?  As you contemplate the answer, recall Dostoyevsky’s contention that asociety should be judged not by how it treats its outstanding citizens but by how it treats its criminals.”

Still, as we like to say on Lawfire®, gather the facts, assess the law and the arguments, and decide for yourself!

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