Entitled To Counsel, Not A Mouthpiece

Among lawyers, the big question following the vote to impeach Trump in the House was who would represent him. Would it be Rudy? Hilarious as that might be, even Trump and his advisers grasped that it would be a disaster to be represented by someone who had become a public joke, both for his wildly insane* rantings and dubious personal hygiene.

There were some legal academics who might have been better choices, whether Jon Turley or Dersh, but they demurred. It wasn’t a traffic ticket, so Jenna Ellis was out of her league, and poor Sidney Powell was already deemed too crazy even for Trump.

Then came the surprise announcement that a serious, competent lawyer, Butch Bowers, would defend Trump at impeachment in the Senate. This led to the usual rounds of snark about Bowers, to which I, adding my snark to the morass, suggested that he might have signed on, but he hadn’t made it to the big dance yet. He could still walk away. And so he did.

Butch Bowers and Deborah Barbier, who were expected to be two of the lead attorneys, are no longer on the team. A source familiar with the changes said it was a mutual decision for both to leave the legal team. As the lead attorney, Bowers assembled the team.

Josh Howard, a North Carolina attorney who was recently added to the team, has also left, according to another source familiar with the changes. Johnny Gasser and Greg Harris, from South Carolina, are no longer involved with the case, either.

No other attorneys have announced they are working on Trump’s impeachment defense.

With an abbreviated time frame to put together a defense, research and write the memoranda and prepare for what’s ahead of you, Bowers did what a good attorney does, put together a team of people with whom he could work, rely and represent his client by providing a zealous defense within the bounds of the law.

That, however, wasn’t what Trump wanted of him.

A person familiar with the departures told CNN that Trump wanted the attorneys to argue there was mass election fraud and that the election was stolen from him rather than focus on the legality of convicting a president after he’s left office. Trump was not receptive to the discussions about how they should proceed in that regard.

There is nothing new about clients believing that they, not the lawyer, get to decide on the legal strategy. There’s even a word for it, mouthpiece, where the lawyer isn’t exercising his best professional judgment as to what constitutes a valid and potentially successful defense, but instead playing the puppet for the client’s words.

Clients sometimes believe that it’s their right to dictate to their lawyer what defense should be used, what claims made, what words uttered. Clients sometimes believe they know better. Sometimes they don’t really care, but just want someone to do their bidding.

The Sixth Amendment provides that an accused has a right to counsel:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Is an impeachment a criminal prosecution? No, but the constitutional mandate, like most, embodies both a rule and a broader tenet, one legally enforceable and the other honored as a matter of principle. Trump is accused, and he should be entitled to counsel. Not that the Senate is obliged to provide one for him if he can’t afford a lawyer, but to be represented in his defense by counsel of choice.

For lawyers, this means that Trump should not be denied access to a lawyer because he’s repugnant and no one outside of his small circle of friends wants to touch his case with a bloody ten-foot Trump flagpole, On the other hand, no lawyer is required to take on his representation. Just as we defend people accused of heinous offenses all the time, we can defend Trump too. We don’t defend killers because we like them, or we support murder, but because it’s a duty we undertook when we chose this godforsaken life of criminal defense lawyers.

But even if we take on the representation, we do not hand our strategy, our competence, our integrity, over to the client to shred. The decision to plead guilty belongs to the defendant. The decision to testify in his own defense is his as well. The legal strategy, however, belongs solely to the lawyer. He may consult with the client, try his best to incorporate the client’s wishes in his defense, but the lawyer always retains the ultimate decision-making authority as to what the defense will be.

There are a multitude of competent, ethical and zealous defense lawyers who would take on the defense of twice-impeached former president Donald John Trump for no better reason than he stands accused, with a substantial retainer paid in advance. Defending the accused is what we do. But there is no competent, ethical lawyer with a shred of integrity who would take on the defense if he was constrained to argue a lie. We do not lie. We do not present frivolous arguments or false testimony. We may be wrong, but we are not liars. Not even if the client demands that we lie in his defense.

As the impeachment trial is set to begin shortly, with pre-trial briefs to be submitted by February 8th, Trump is now in a predicament, as would be any lawyer who assumed his defense. They might get more time from the Senate under the circumstances. They might punt, particularly in light of the Senate’s 55-45 vote on tabling Sen. Rand Paul’s motion to dismiss the impeachment as unconstitutional. But it will be difficult, if not impossible, to present the appearance of serious defense at this point. Who would undertake this burden, atop the demand of the client that the lawyer disgrace himself by serving as mouthpiece for the client’s absurd defense?

I wonder what Rudy has on the docket next week?

*Merely insane is no longer a disqualification for Trump-adjacent lawyers, these days. It’s now into “insanity plus” to push a lawyer over the edge.

12 thoughts on “Entitled To Counsel, Not A Mouthpiece

  1. B. McLeod

    Fighting circus with circus. It’s a political “trial” without real rules, and only the final vote counts. Orly Taitz could do this job.

    1. SHG Post author

      There’s an argument that if he does nothing, says nothing, doesn’t even appear, he would still win. There’s only one way to find out if that’s true.

      1. SamS

        It’s not just that he could win by not appearing, he could not lose anymore than he already has. He has 45 GOP senators already. By appearing he won’t get any of the other five but he might lose several of the 45 he has. As I’m sure you have counseled thousands of time, remain silent.

        1. SHG Post author

          Exactly right. Never underestimate the ability to seize defeat from the jaws of victory.

          Then again, if the winds blow just right, 18 Republican senators could have something else to do on the day of the vote, fail to show up in the chamber and the five could be sufficient. It doesn’t look good for anyone at the moment, but too many unanticipated things have happened of late that you never know.

  2. Buncy

    Gee, Scott, Oracle of Long Island, you must be reading these days in Dale Carnegie’s books about winning friends and influencing people.

    1. SHG Post author

      This is one of those comments that would probably to incredibly funny if I had a clue what you were trying to get at, but I don’t, so it just seem random and pointless. But whatevs.

  3. Richard Parker

    So much for “America’s Mayor” . . . Trump drags everyone into the mud, but Rudy positively leaped into the mud pot. I wonder if he thought that toadying up to Trump was his own path to the White House.

  4. TK

    This can be a difficult discussion with clients. Were I not appointed counsel, this is probably a conversation I would want to have with clients before taking their case. Instead, this is usually a discussion that comes up when my professional judgement begins to clash with what the client wants argued and done. At that point, the relationship has already begun to undergo strain and client tends to take it poorly when I explain that I have the final say on almost everything. I’m always looking for a better way to handle this conversation.

    1. SHG Post author

      This is part of my talk up front, because I consider it part of my duty not to “surprise” the client when time comes to make strategic decisions. If the client doesn’t like my direction, it’s better that he not retain me and find someone more accommodating of his desires. But then, I don’t do appointed work, so the situation is somewhat different.

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