President should not pay Russia costs for aides
President Trump’s reported pledge of $430,000 to help White House and campaign staffers pay for legal costs associated with the Russia investigation is an ethics minefield. Because the president himself is under investigation, such a gift risks increasing both his and his aides’ exposure to liability for obstruction of justice and violating government ethics rules. It would also raise serious legal ethics questions for the recipients’ attorneys.
Although the White House has stated that attorneys are working on the mechanics of the president’s donation, it is unlikely that they will be able to resolve these basic problems. They should abandon the plan.
The public record already contains evidence that Trump attempted to impede the investigations of former national security adviser Michael Flynn and Russian interference in the 2016 presidential election, including Trump’s firing of FBI Director James Comey. Special counsel Robert Mueller wants to interview at least six current and former Trump aides. Each is a potential witness against Trump.
The core of obstruction is taking corrupt action to interfere with an investigation. Thus it raises an eyebrow whenever a person who is the focus of an investigation offers something of value to a witness. As far as we know, Trump’s plan to donate to his aides’ legal defense funds has not been tied to an explicit request that the aides paint his actions in the best light. But the president’s offer sends the same implicit message: I’ve got your back if you’ve got mine. That message could be viewed by Mueller (or a grand jury) as part of a pattern that amounts to obstruction. Thus it puts Trump and his aides at greater risk.
For those recipients who are still federal employees, such a gift could also violate their responsibility to decline gifts that appear improper. Federal regulations say employees should consider declining a gift if a reasonable person “would question the employee’s integrity or impartiality as a result of accepting the gift.” What reasonable person wouldn’t question the integrity or impartiality of an aide whose legal bills are being paid by the person who has the most to gain or lose by what the aide says?
The final risk falls on the attorneys representing Trump’s current and former aides. Under the American Bar Association’s model rules on professional conduct, a lawyer may accept compensation from someone other than a client only when the client gives informed consent and there is “no interference with the lawyer’s independence of professional judgment.” When the person paying the bills has a lot riding on the advice that the attorney gives to his client, there is always the risk that the attorney will be tempted to shape the advice to benefit the fee payer.
Although we are sympathetic to witnesses confronted with potentially crippling legal bills, the president’s offer only worsens their situation. The wisest course would be for Trump to eliminate the risk, to them and to himself, by withdrawing the offer.
Norman Eisen, chief White House ethics lawyer for former president Barack Obama, is chairman of Citizens for Responsibility and Ethics in Washington. Conor Shaw is counsel at CREW.