This post has been updated to correct the spelling of Lawfare blogger Susan Hennessey’s name.
President Trump’s attorney, Jay Sekulow, seems to be an adherent of the just-yell-louder-school of legal argumentation. Sekulow has employed this tactic for decades, dating at least to his maiden outing before the Supreme Court in 1987, when American Lawyer magazine described Sekulow as “rude and aggressive.”
And so it was on Sunday, when Sekulow completed his second “full Ginsburg,” a reference to William Ginsburg, the hapless lawyer for Monica Lewinsky who did his client no service by making the rounds of all the Sunday shows. Sekulow makes Ginsburg look like Oliver Wendell Holmes Jr.
He combines bluster and obstreperousness (“I’m going to answer your question, I am, and you’re going to let me answer it,” he lectured/interrupted Fox News’s Chris Wallace”) with obfuscatory legal jargon (“I’m not in privity of contract, as we say, with the party that’s responsible for the actual payment of the bill.”)
Sekulow compulsively redirects (“I wonder why the Secret Service, if this was nefarious, why the Secret Service allowed these people in,” he told ABC’s Jonathan Karl). He is internally inconsistent (“I mean, opposition research in campaigns happens all the time,” he told CBS’s John Dickerson, just after noting that Donald Trump Jr. had said that “if he had to do it all over again, there are things he would do differently.”)
So watching a Sekulow performance, it is tempting simply to ask: Why is this man shouting?
The better question is: What is this man shouting? Because if you turn down the volume and pay attention to what Sekulow is saying, you can deduce the disturbing outlines of where the president’s legal team may be heading. As Sekulow made the rounds Sunday, he signaled the expansion of the Trump team’s assault on former FBI director James B. Comey and, in turn, on the legitimacy of special counsel Robert S. Mueller III. This is worrisome, because it lays the foundation for firing Mueller and/or issuing pardons and declaring, “Case closed.”
Thus, when Wallace asked Sekulow whether the Trump team’s repeated denials of dealings with Russia were now “suspect,” it triggered this disquisition:
“I think it’s important to put the framework here. How did we end up with a special counsel? Here’s how. … The FBI director at the time, James Comey, had a series of meetings with the president of the United States. In those meetings, he took notes. He put them on his government computer, put them in his government desk, and when he was terminated from [that] position, which you would acknowledge that the president had the authority to do, he gave them to a friend of his to leak to the press … to get a special counsel, and the special counsel is appointed.”
In this retelling, Mueller is the fruit of the poisonous tree planted by Comey. Therefore, Mueller’s appointment is illegitimate and he should go — and with him the investigation.
“So the basis upon which this entire special counsel investigation is taking place is based on what? Illegally leaked information that was a conversation of the president of the United States with the then-FBI director,” Sekulow told NBC’s Chuck Todd. “And that to me is problematic from the outset. And I think that raises very serious legal issues as to the scope and nature of what really can take place.”
Does it? In his previous round of Sunday shows, Sekulow muddied the waters by claiming that Comey had violated attorney-client privilege in revealing his conversations with Trump. As Wallace explained Sunday, this assertion was incoherent, since Comey was not acting in any way as Trump’s lawyer.
Sekulow’s pivot — to claiming that the conversations were protected by executive privilege — is scarcely more convincing. Perhaps Trump could have asserted privilege to bar Comey from testifying before Congress, especially before the firing. That’s different from asserting that Comey’s decision as a private citizen to reveal information about his conversations with the president was “illegal,” even if Comey proceeded through the distasteful cutout of a memo leaked by a friend. If such disclosures were against the law, every administration veteran who wrote a tell-all book would be in jail.
Another strand of Sekulow’s argument involves the notion that the memo was essentially government property, not Comey’s to decide to convert to his own use, even if the information contained in it is unclassified. Irony alert: This argument requires concluding that Comey took something of value from the U.S. government, while asserting that the Trump campaign did not solicit anything of value from the Russian government. On the Lawfare blog, Timothy Edgar and Susan Hennessey assess the argument that Comey’s action violated the conversion statute as “cutout.”
Even if it weren’t, what would be the relevance? Comey’s alleged crime wouldn’t make Mueller’s appointment void or voidable. A leak of classified information that is intended to trigger a criminal investigation doesn’t make the ensuing investigation improper.
But watch that space. I suspect — and fear — that we haven’t heard the last of this bogus argument.