Make This Obstruction Thing Go Away

My Comments: Coming to terms with the chaos in Washington, DC is not easy. Especially if you are inclined to favor Democrat Party values and themes. The insights expressed here may help Democrats and Republicans alike. I simply know many of us on the left are not happy.

By Dahlia Lithwick / June 22, 2017

It will shock nobody to learn that Donald Trump doesn’t understand what lawyers do. If you are a “successful businessman,” it’s hardly surprising that you would conceive of lawyers as well-compensated plumbers and cocktail waitresses—folks who make crap disappear and bring you everything you want, wordlessly and with short skirts. If you are a Trump-style “successful businessman,” one who is apt to hinge his success on infinite lawsuits, threats of lawsuits, and the invitation to your creditors to file other lawsuits, your lawyers are pretty much just the guys and gals who empty your ashtrays of whatever debris is left behind once the court has ruled. If one lawyer won’t get you the outcome you desire, the next one surely will. With massive fees and important connections on offer, there will always be a nearly infinite pool of people willing to file some brief on your behalf.

As soon as Trump started to talk about lawyers and the law on the campaign trail last year, I recognized the type: a rich guy who had never been told “no.” If you have small children you, too, will recognize the type. It’s a developmental stage that usually ends at toddlerhood, but if the toddler has enough money, power, and influence, that person can grow up to be an adult who is a nightmare to represent. Before I was a journalist I briefly worked at a family law firm, and I occasionally had the professional obligation to assist extremely wealthy “successful businessmen” with their divorces and custody battles. Sometimes these folks were on the other side. Always, they held a view of lawyers I didn’t remember learning about in law school: They believed attorneys were the help and that laws were problems that—with enough help and enough money to buy even better help—could be made to go away.

It was a good life lesson, in that I came to understand that there are people who can at once achieve the greatest heights in corporate America and remain truly baffled that they can’t get sole custody just because they want their ex-wives to suffer. Some of these people had quite literally never encountered judges who had told them “no,” much less lawyers who said, “This is the statutory child support formula, and it’s not negotiable.” So when Trump began to suggest on the campaign trail that, say, Judge Gonzalo Curiel was a “hater,” or that Merrick Garland didn’t deserve a Supreme Court hearing, I was pretty unsurprised. Trump is every fancy divorce client ever, announcing that judges and lawyers either play for his team or get canned.

Much has been made of the fact that Trump fired his FBI Director James Comey either because of Comey’s Russia investigation or not because of it. Much has been made of the fact that he fired Sally Yates because he didn’t like the advice she offered about Michael Flynn and that he fired U.S. Attorney Preet Bharara because Bharara wouldn’t return his phone calls. Trump also makes endless businessman-y noises about his plans to fire Rod Rosenstein; Robert Mueller; and his attorney general, Jeff Sessions. And in the meantime, he surrounds himself with other lawyers, many of whom have no experience in government service but seemingly infinite experience in emptying his ashtrays. The personal attorneys he’s recently brought on to deal with the FBI investigation (which he claims doesn’t exist, incidentally) include a fellow who appears to be engaging in the same branding and get-rich side gigs that Trump dabbles in himself and another lawyer who was on the losing side of the massive Trump University suit for which the president had to pay $25 million to settle claims from students who alleged they’d been defrauded. Nobody should be surprised, then, that Trump’s personal lawyer is now doing work that should be done by the White House Counsel’s office. We also shouldn’t be surprised that some of the Trump ashtray-emptiers now have to hire their own ashtray-emptiers. Nobody’s ever said “no” to those guys either.

This pattern goes a long way toward explaining why most serious Washington lawyers want nothing to do with the president’s dubious criminal defense dream team. Lawyers who have been trained to answer to the Constitution first and their wealthy clients far later don’t want to be in the position of having to tell the world’s largest preschooler that sometimes no bendy straw for the juice box really means no bendy straw for the juice box. And lawyers who have done far more with their careers than Sherpa a “successful businessman” through multiple bankruptcies may have a hard time explaining to the president that no amount of money or power in the world can make certain judges and some courts disappear.

In the end, the same intellectual underpinnings that gave us the “unitary executive” theory—the notion that the president has unbounded control over the executive branch and its agencies—plus the burgeoning belief that corporations are people and that money is speech have created the preconditions for a president built of equal parts money, power, and a return to Louis XIV’s conviction that “l’etat, c’est moi” (“the state is me”). And as Sen. Sheldon Whitehouse has been arguing, so long as dark money can continue to buy judicial seats, the president’s view that “successful businessmen” are above the law will increasingly be affirmed in the courts.

I suspect that if one asked Trump if there was any difference between the Office of Legal Counsel, the White House Counsel’s office, the attorney general, his divorce attorney, and the FBI director, he would say, without guile or uncertainty, that they all work for him. Perhaps the unitary executive crowd would agree. But as we inch nearer to a showdown between Mueller’s and the president’s views of what lawyers do each day, it’s worth considering that there is one place left in America in which lawyers in crumpled shirts work for a tiny fraction of what their law school classmates earn. In Washington, the “successful businessmen” may buy a lot of $100 signature cocktails at the Trump International Hotel bar, but lifelong government lawyers don’t usually empty ashtrays for anyone.

Trump’s robber baron view of all attorneys as fungible well-paid loyalists may someday prove to be the Washington way. But so long as the rumpled, badly paid government lawyers are sitting on the other side of the table, this won’t be as simple as a divorce settlement. And Trump still has to contend with the most rumpled and principled government lawyers of them all: the judges who haven’t been much impressed, at least thus far, with all the president’s men.