Daily Dicta: You're a Brave Man, Mr. Flood
After months of hearing about a veritable parade of white collar stars who declined to represent President Trump in the Russia investigation, Emmet Flood finally took the bait. Will he escape the Trump curse?
May 03, 2018 at 04:09 PM
7 minute read
After months of hearing about a veritable parade of white collar stars who declined to represent President Trump in the Russia investigation, Emmet Flood finally took the bait.
The Williams & Connolly partner is nobody's fool. He must know what he's getting into. But you have to wonder: Will he escape the Trump curse?
So many lawyers (and doctors and cabinet secretaries) have come out worse for the wear after a stint on team Trump—and not just Michael Cohen.
Thrust into the spotlight, Kasowitz Benson Torres founder Marc Kasowitz was tarred by the media as a hothead who writes nasty emails to strangers, drinks too much and hits on the hostess at the Palm.
Morgan, Lewis & Bockius tax partner Sheri Dillon was mocked on Saturday Night Live. (“Look at all these papers. If he wasn't divesting, how could there be so many dang papers? … It's like, 'Help, help lifeguard. I'm practically drowning in papers.'”) At least one client, Wallace Global Fund, fired the firm for enabling Trump's “unchecked self-dealing, flouting of the Constitution and concealment of the truth from the public.”
Former Akin Gump Strauss Hauer & Feld partner John Dowd quit in March as Trump's lead lawyer in the Russia investigation after reports that the president wouldn't follow his advice.
He may now face legal jeopardy of his own, as Stroock & Stroock & Lavan of counsel Joel Cohen wrote in The New York Law Journal last month. According to The New York Times, Dowd conveyed to Paul Manafort and General Michael Flynn that Trump would ultimately pardon them. If it's true (and Dowd says it is not) “one could conclude that he basically communicated to them or to their lawyers: 'Clam up and you'll be paid for it, with a pardon,'” Cohen wrote.
Now Ty Cobb is stepping down, reportedly ready to retire at age 67.
Huh. I wonder if he'd be retiring if he'd never gone to work for Trump, and instead had continued on in obscurity as a partner at Hogan Lovells, where his salary was $5.3 million.
“Rocks in my head and steel balls” is how Cobb described his decision at the time to join Trump's legal team.
Surely Flood is going into the job with his eyes open—he's got a wealth of experience. As my colleagues at The National Law Journal reported, he previously “represented former President Bill Clinton in impeachment proceedings brought by the House, represented former Vice President Dick Cheney in a suit brought by former CIA employee Valerie Plame, and worked for two years in President George W. Bush's White House Counsel's office.”
He sounds like the perfect guy to face off against special counsel Robert Mueller III, but there are some important caveats.
First, Flood resigned from Williams & Connolly. When Clinton was facing impeachment, Williams & Connolly's David Kendall was at the hub of his defense as his private lawyer, drawing on the firm's considerable resources as needed.
That's not going to happen here. Williams & Connolly chairman Dane Butswinkas in a statement said, “We are disappointed to lose [Flood] to the White House, but we fully appreciate Emmet's strong commitment to public service. The White House will be fortunate to have his experienced counsel. We wish Emmet every success in his new position.”
That's very nice, but it also makes clear W&C is not part of the package.
Trump still lacks the firepower of a major law firm. When the president hired Rudy Giuliani in April, the former New York City mayor took a leave of absence from Greenberg Traurig.
In a rather chilly statement, Greenberg Traurig executive chairman Richard Rosenbaum said Giuliani was leaving “for an unspecified period of time to handle matters unrelated to the law firm or its clients.”
(Also, don't let the door hit you on your way out.)
Because Flood will work for the White House and not for the president as his private lawyer, he'll also likely be hampered by an inability assert attorney-client privilege.
In 1998, the U.S. Supreme Court let stand a ruling that White House lawyer Bruce Lindsey had to answer a federal grand jury's questions about Clinton, and could not claim privilege. Presumably that holding would apply to Flood as well.
Reading the decision, it's actually incredibly reassuring to have someone of Flood's caliber in the White House.
“With respect to investigations of federal criminal offenses, and especially offenses committed by those in government, government attorneys stand in a far different position from members of the private bar,” the D.C. Circuit held.
“Their duty is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure,” the court continued. “The constitutional responsibility of the president, and all members of the executive branch, is to 'take Care that the Laws be faithfully executed.'… Unlike a private practitioner, the loyalties of a government lawyer therefore cannot and must not lie solely with his or her client agency.”
Plaintiffs in five states are suing on behalf of anyone who has paid increased health insurance costs, including higher premiums, deductibles and co-payments, because of effects attributable to the opioid epidemic. Good luck with that.
Could a ruling favorable for employers recast employment law and related practices—or even reduce the demand for lawyers engaged on those issues?
The utility giant charges its customers a monthly “storm surcharge,” promising that its systems could resist winds traveling up to 130 mph. And then came Hurricane Irma.
The nine-lawyer boutique, which is chock-full of former SCOTUS clerks, has developed a reputation as a go-to-firm for conservative issues.
“There is no other experience like this in legal education where students get such hands-on, real-world experience in the law on cases that have national scope.”
Plaintiffs say they were placed on the no-fly list as retaliation for refusing to become government informants.
To quote the wits on Twitter, they were only out for a buck.
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