A number of high-powered lawyers who have represented Donald Trump in the past are sitting out his latest legal battle, as the former President prepares to assert executive privilege to block congressional investigators from getting information on the January 6 insurrection.
That’s left Trump with a relatively small legal team without a lot of experience litigating issues of executive privilege as he readies for a court fight that could test major issues of presidential authority.
Some go-to attorneys have been spooked by Trump’s reputation for sometimes not paying as a client, according to several people familiar with conservative legal circles. Others watched closely as lawyers fled Trump’s prior teams, frustrated by him as a client or facing their own ethical predicaments. Others still want themselves and their firms to stay far away from Trump’s insistence that the election was stolen.
“It’s not a 10-foot pole” for law firms distancing themselves from Trump, “it’s a 1,000-foot pole,” said John Yoo, a University of California at Berkeley law professor who held a senior Justice Department position in the George W. Bush administration.
More than a half-dozen prominent attorneys who took notable roles in defending Trump or his advisers in the past are not assisting him this round. Those include Jay Sekulow and Ty Cobb, according to sources familiar with Trump’s legal effort.
And at least four well-known lawyers were repeatedly approached by Trump’s team for help in recent weeks — and said no, a source familiar with the discussions tells CNN.
Among the four is William Burck, the white-collar lawyer who represented 11 Trump associates in and after the Mueller investigation. Burck turned Trump down three times in recent months, according to people familiar with the former President’s orbit, because he wanted to stay away from how toxic Trump’s situation has become after the attempt to overturn the election, the people said.
Trump said in a statement that he had never asked the four lawyers who turned him down, including Burck, for help. “I don’t even know who they are, they are just looking to get publicity,” the ex-President said. “I am using lawyers who have been with us from the beginning.”
“I do pay my lawyers when they do a good job,” Trump added.
Indeed, lawyers who worked in Trump’s White House or campaign are still at work for the ex-President and now focused on more narrow tasks, such as handling executive privilege discussions with the National Archives or communicating with potential ex-White House witnesses called to Capitol Hill.
Two former legal advisers — Patrick Philbin from the Trump White House counsel’s office and Justin Clark from the 2020 campaign — are still involved.
Clark, for instance, signed letters outlining Trump’s executive privilege concerns to four witnesses under subpoena.
The toxic client
Large sections of the legal industry have publicly distanced themselves from Trump for years, and especially at the end of his presidency, when he pushed dozens of lawsuits to challenge his 2020 electoral loss and spread unfounded voter fraud accusations. Those lost cases have already resulted in the suspension of his celebrity attorney Rudy Giuliani’s law license, prominent conservative attorney Cleta Mitchell’s departure from her firm and the sanctioning of several other attorneys who worked on a case in Michigan. Giuliani and another lawyer, Sidney Powell, are also facing defamation lawsuits seeking billions of dollars in damages.
Even longtime Trump law firms like Jones Day announced publicly that they wouldn’t be involved in his legal challenges to the election.
The three lawyers in addition to Burck who have turned down Trump’s entreaties in recent months, one source said, are the conservative heavy-hitters Charles Cooper, Mark Filip and Paul Clement.
Cooper, a former assistant attorney general with experience in congressional subpoena fights, told CNN he would watch any court fight about Trump and executive privilege “from the bleachers.” He declined to comment further.
During Trump’s impeachment over his dealings with Ukraine, Cooper brought an unconventional court challenge on behalf of a National Security Council witness that put on ice the House’s ability to get testimony from that witness, Charles Kupperman, his boss John Bolton and then-White House chief of staff Mick Mulvaney.
Filip, a former acting attorney general, and Clement, a former solicitor general, work at the same elite law firm, Kirkland & Ellis, that represents Trump’s last attorney general, Jeffrey Rosen, in the Capitol Hill probes into January 6.
Rosen already spoke to the Senate Judiciary Committee for hours about Trump’s attempts to fire him and overturn the 2020 election, making his lawyers’ involvement more difficult to secure — and even less likely. The firm declined to comment.
Disjointed legal effort
In the January 6 aftermath, Trump’s legal approach has structured itself differently from past investigations, such as the Mueller probe and during the Ukraine impeachment, where presidential privilege and litigation czars emerged. In those cases, Trump enlisted personal lawyers, witnesses’ attorneys, the Justice Department and White House counsel’s office experts to coordinate.
But the ex-President now has no coordinating attorney leading his team, according to several people familiar with his approach. There also isn’t a main attorney who’s handling messaging on behalf of the former President.
Trump’s legal machine has been disjointed at times. Several people close to the former President have told CNN in recent days that they are not aware of a broad, cohesive legal strategy ready to respond on his behalf or a litigation heavyweight waiting in the wings to go to court.
So far, Trump’s legal response has largely consisted of writing letters to witnesses and weighing in on a congressional request to the National Archives, which houses his presidential papers.
To the witnesses, Trump’s legal team said he may want to assert executive privilege. The witnesses may have to decide on their own whether they will comply with subpoenas they’ve received or fight them in court, the people said.
That leaves Trump’s team primarily dealing with the National Archives. Philbin and Pat Cipollone, former White House counsel, have also been involved behind the scenes there — but both could be key witnesses to Trump’s actions in the last days of his presidency, complicating the roles they could play in the wider investigation.
However, the pair already opened a Washington, DC, office of a California-based small litigation law firm with other former Trump administration colleagues, making it likely they’ll continue to handle some legal needs for the former President.
Legal heavyweights needed
A larger, more experienced firm may be needed if the Trump executive privilege fight heads into appeals. Past presidents have used some of the most elite law firms in Washington to help them post-presidency, including the Clintons keeping a decades-long relationship with their private attorney David Kendall at Williams & Connolly and Ronald Reagan turning to Ted Olson, who had high-ranking Justice Department experience, to counsel him when he testified in a 1990 trial related to the Iran-Contra affair.
“You’d want to see a top 10 national law firm with a big, experienced DC office” handling cases that test constitutional issues, such as how much say a former president has over the confidentiality of his records, said Yoo, the former Bush administration Justice official. “You don’t see that here. It’s quite glaring.”
Post-Watergate-era law allows for former presidents to have some say over what they want to keep protected in their presidential records — and to litigate what should stay confidential if they choose.
A split has already materialized between what Trump wants and what the Biden White House’s position is. Last Friday, Trump’s political organization said it believed that more than 40 documents in the hands of the National Archives should stay confidential. The Biden White House, however, didn’t oppose the documents going to the House investigation.
That sets up the possibility of a complex and expensive court fight — where Trump may need to sue if he disagrees with the National Archives’ approach to his papers. It’s possible that the questions he could raise in court about executive privilege may need to be settled by the Supreme Court, Yoo said.