clock menu more-arrow no yes mobile

Filed under:

“They’re not on the same team”: why Trump’s lawyers keep clashing over the Russia probe

Here’s a simple guide to the various lawyers representing President Trump.

Donald Trump Meets With RNC's Fundraisers in New York
Don McGahn.
Drew Angerer/Getty Images

The leader of President Donald Trump’s personal legal team, John Dowd, just resigned. That’s the biggest change yet in the group of lawyers defending the president from special counsel Robert Mueller’s probe into possible Trump campaign collusion with Russia in the 2016 election.

According to the Washington Post, Dowd’s departure proved a mutual decision: Trump didn’t like the way he handled the Mueller investigation, and Dowd didn’t think the president heeded his advice.

Dowd was always a controversial figure. Last Saturday, he said he wanted Mueller’s probe ended. He first said his statement was as Trump’s counsel, but then backtracked and said it was his personal view.

That contradicts what Ty Cobb, the lead White House lawyer working on the Trump-Russia case, advocated for months: Cobb wants Trump to work closely with Mueller’s team and cooperate fully. The New York Times reported on Monday that Trump may soon fire Cobb for pushing a more cooperative strategy with Mueller, although Trump has apparently reassured Cobb his job is safe.

As of now, it’s unclear who will replace Dowd as Trump’s top lawyer.

Dowd’s resignation comes on the heels of a recent addition. Joseph diGenova, who joined Trump’s legal squad on Monday, is most famous for his hyperbolic attacks on the Russia investigation during Fox News hits. He will likely push for Trump to reverse course, arguing that the Mueller investigation should be shut down and the FBI officials who participated in it be investigated. “The appointment of a special counsel will go down in history as one of the worst decisions ever made by a Justice Department official,” as he put it in a January 30 Fox News interview.

And none of this even mentions the role of Don McGahn, who is the president’s top White House lawyer. But his main job is to represent the White House, not Trump, which means Trump mostly relies on his personal legal team to push back on Mueller.

So Trump’s legal team is in a state of flux, threatening to make an already dysfunctional team even more dysfunctional. But that makes sense, in a way, because there isn’t actually one single “Trump legal team.” There are several lawyers who represent Trump in different ways, and each has his own role, agenda, and jurisdiction.

Here, then, is a simple guide to the various lawyers representing Trump: who they are, what roles they have in the Trump-Russia investigation, and why they seem to clash so often.

Don McGahn, White House counsel

Don McGahn, who was a Trump campaign lawyer, is the official White House counsel — that is, the White House’s top lawyer. That means he has multiple responsibilities such as vetting potential nominees and ensuring that federal employees follow ethics laws.

“Rarely does an order or a memo leave the White House without the counsel’s sign-off,” Mother Jones reported in a McGahn profile last summer.

McGahn’s highest calling is to keep members of government — including the president — out of legal trouble. He’s done that already: he reportedly stopped Trump from firing Mueller last summer. However, McGahn is also tied up in the Russia investigation, and that makes his ability to work on the Russia case much harder.

Here’s why: Last May, former acting Attorney General Sally Yates testified that she told McGahn former National Security Adviser Michael Flynn had lied to the FBI during the Russia investigation. That matters because it’s possible the White House’s top lawyer knew Flynn had committed a crime when Trump chose to fire Comey.

The veracity of Yates’s claim has since been challenged, but it’s still bad news for McGahn. As a result, earlier this year McGahn recommended that Trump hire another lawyer to take care of the White House’s response to the Russia probe.

Enter Ty Cobb.

Ty Cobb, White House special counsel

Ty Cobb joined the White House last July as a special counsel. He oversees the White House’s legal and media response to the Russia investigation. Politico reports that his day-to-day responsibilities include reviewing internal documents related to the Russia investigation and responding to reporters.

Cobb’s main duty is to ensure no one in the White House breaks the law — like obstruct justice — as Mueller’s probe intensifies. That’s important to stress: Cobb’s legal loyalty isn’t only to Trump, but to all members of the executive branch. But unlike McGahn, Cobb’s portfolio is much narrower.

Experts note that Cobb’s role is legally ambiguous: How can he represent the White House but also focus his time and attention on the Russia probe, which centers on the president? It’s still not entirely clear how Cobb can really separate the two as he does his job, experts tell me.

But there is someone whose sole job is to represent the president from any legal trouble brought on by Mueller’s probe.

Who will succeed John Dowd, formerly Trump’s top personal lawyer?

John Dowd, a veteran Washington defense attorney, was until Thursday Trump’s top personal lawyer. That means he was paid by the president, not by the federal government.

Dowd joined Trump’s personal defense last June specifically to defend Trump personally from any charges by Mueller. It’s unclear exactly how many lawyers Dowd led, but he worked closely with Jay Sekulow, the chief counsel at the conservative American Center for Law and Justice, who regularly defends Trump in the media. It’s likely diGenova has a similar portfolio to Sekulow’s.

It’s possible that Sekulow or diGenova replace Dowd, but it’s still unclear who will take over Dowd’s duties at this point.

But whoever does replace Dowd has an important role to play. Trump’s top lead personal lawyer highlights the important distinction between Trump the president and Trump the man. That lawyer has no connections to Trump’s role as president; the lawyer is there solely to represent Trump as an individual. After all, much of what Mueller is investigating happened before Trump became president.

So the question then becomes: How closely do these lawyers interact?

“They’re not on the same team”

McGahn, Cobb, and Dowd interacted to discuss their work, but they ultimately had different jobs to do.

“There’s plenty of room to work together, but they have to do it in a way that’s consistent with their ethical obligations and their legal obligations,” Andy Wright, a former White House lawyer who is now at Savannah Law School, told me in an interview. “They’re not on the same team.”

This can play out in important ways, especially as it relates to which lawyer Trump — or government officials possibly under investigation — should talk to about the Russia probe.

Neil Eggleston, who served as President Barack Obama’s White House counsel from 2014 to 2017, told me that “there is no attorney-client privilege when a White House lawyer talks to the president of the United States or anybody else in the White House,” because a White House lawyer works for the government, not the individual.

“And so if Don McGahn had a one-on-one conversation with President Trump about whether he should fire Comey, there’s no attorney-client privilege that would attach to that,” Eggleston added.

In other words, Trump is better off discussing Russia probe matters with his personal lawyers, like Sekulow, diGenova, and whoever replaces Dowd because attorney-client privilege applies to that relationship, which means he doesn’t have to divulge any of their conversations to Mueller. Cobb and McGahn can’t help him with that, and Mueller could even interview them about their chats with Trump.

Because the lawyers have different roles and responsibilities, disagreements over how best to defend Trump are pretty much inevitable. For example, Dowd and Cobb famously met last September at a restaurant in Washington, DC, to discuss their work.

Cobb complained that McGahn was hiding documents he needed in a safe and also worried there was “a McGahn spy” on his team. It’s unclear if any of that is true, but it goes to show just how deep the divisions among the president’s lawyers actually are.

Sign up for the newsletter Today, Explained

Understand the world with a daily explainer plus the most compelling stories of the day.