Note taking by lawyers, something we, particularly laymen, never really think about, is probably now part of our country's partisan divide, having come to the forefront thanks to President Trump.  For Trump supporters, a former attorney for the presidency (and, we should be reminded, not the president himself) who took notes while sitting in the Oval Office with the president was, in the president's phrase, a “bastard” out to get him. For “Never-Trumpers,” such a lawyer—in the person of White House Counsel Donald McGahn—was a dutiful safety net in place to ensure that the president didn't take a suicidal fall of “obstruction” in directing McGahn, as McGahn recalls it, to outright fire Special Counsel Robert Mueller. Firing Mueller being a bridge too far for McGahn.

The president, of course, never keeps his thoughts to himself.  So watching McGahn “create a record” (as Mueller describes it), which McGahn told Trump was “a good thing” and what “real lawyers” do, Trump couldn't resist calling McGahn out to his face. After all, he obviously saw McGahn as engaged in “self-protection,” should McGahn be called upon by some investigator (as was later the case with Mueller) to defend his own conduct. Unsurprisingly, in response, Trump invoked his paradigm for what a good lawyer should be—Roy Cohn. “I've had a lot of great lawyers, like Roy Cohn. He did not take notes.” (Mueller Report, Vol. II, p. 117).

Put aside that that “great lawyer” (Cohn) was disbarred and generally considered a sleazy member of the bar. He did occasionally have great successes—the ethics of those successes, however, often questionable. Still, using Cohn as his benchmark hardly makes sense. Trump knows as well as anyone that Cohn didn't make his bones as a typically reputable lawyer, but rather as an (extremely effective) “enforcer” of his client's interests. Although Cohn purportedly had a steel trap memory, it probably wouldn't have mattered to Cohn what his client told him behind closed doors. He learned quickly, probably without notes being taken (I didn't have the pleasure of ever being present), what his client's endgame was. No notes needed for that, because it was largely spin for Cohn.  Cohn's reputation, after all, was that he was extremely effective at spin—akin to a being a lawyer for Jack the Ripper, selling “Jack” as a knife salesman!

But, I digress. The real issue is note taking.  Now, I suspect that the president was at least partly correct about McGahn—McGahn knew what and who he was dealing with. Accordingly, he wanted his recollections—that is, the “record”—to be precise, especially if he was ever called upon.  But remember, in fairness to McGahn, he was a lawyer for the “presidency,” not the president, and creating a record for the White House was indeed a time-honored obligation to the nation, even putting aside his perceived obligation to himself.

Now, it's not necessary for private lawyers for clients that aren't corporations to “make a record”—what the client tells them is privileged and the lawyer is obligated to keep it so.  And, most lawyers aren't and shouldn't be afraid that their clients will turn against them or blame them for something gone wrong—although it certainly does happen: “You never told me there was a favorable settlement offer on the table.”  Or, “Why didn't I know, as you now say I did, that Jimmy [my coconspirator] had a cooperation agreement?”  Or, “I never told you that I actually received $200,000 in cash.”  Sound the least bit familiar?  It should, of course, help (the lawyer) when the lawyer has contemporaneous notes taken by her, or her associate, of the conversation with the client, particularly if it ever hits the fan.

So, McGahn is absolutely right—real lawyers do take notes, although there is great nuance to that.  When a lawyer, particularly a criminal lawyer, is conducting a fact-intensive interview of his client in the government's crosshairs who accordingly feels extremely vulnerable, many lawyers wanting to get the story don't want to be distracted from what the client is saying by having to take notes. And she doesn't want the client to feel more vulnerable by the lawyer's eyes frequently turning to the note pad when the client says something troubling.  Accordingly, for this and other reasons, you have a non-interviewer in the room to take the notes.

But there again is nuance as you don't want the client, particularly if he has something incriminating to say, to be inhibited from talking because the associate is punching feverishly on her keyboard or writing noticeably on her notepad. The same is true if, say, a defense lawyer is meeting with a prosecutor who is making important representations, e.g., “your client is not a target.”  The mere presence of a note-taker poised to “lock in” and, indeed, locking in, every word may discourage even the most forthright of prosecutors.

The flip side? Prosecutors know that most would-be cooperators lie, mislead or omit something during their early interviews. It's just a reality of the process.  Many—certainly not all—have been known to omit portions of the interview from their note taking (you know, the notes to be delivered to the defense), or encourage limited note taking by attending agents when they anticipate that the would-be cooperator won't be telling the entire God's honest truth (at least the first time around). It's not playing the game according to Hoyle, but it is the reality. Yes, prosecutors are obliged to turn over all prior statements of a witness, particularly when they contain exculpatory material, but sometimes the notes themselves (deliberately) don't actually reflect the inconsistencies. Meaning, some prosecutors only turn over exculpatory remarks if there's a written “record” of what the witness said.  In fact, some agents with exceptional memories take almost no notes during interviews and memorialize the interviews after the interviews are over.  The problem there, as in most cases, is that contemporaneous notes yield the higher probability of accuracy.

Think of it this way. When you visit your physician, don't you want your doctor taking contemporaneous notes about your blood pressure, your heart rate, etc.?  Or do you want him relying on his memory for what his findings were last visit or how they will compare to next time? The answer is obvious—you want the most reliable facts possible—whatever the truth is. That's what “real doctors” do, to bastardize McGahn's phrase.

Now, at least as perceived by McGahn, the president didn't necessarily want the objective truth to prevail if his conduct concerning Mueller was ever called into question, as it now has been in Mueller's report. The existence of contemporaneous notes by a lawyer he obviously didn't quite trust might only get in the way of Trump's own truth.

McGahn, though, is obviously right. Lawyers have to do what they perceive is in the best interests of their client (in McGahn's extremely unusual case the office of the presidency), the same as any doctors must in the interests of their patients. The nuance of how they best do it should be consistent with the client's sensitivities weighed against the reality that a busy or even a dilettante lawyer's memory is hardly a substitute for that contemporaneous note.

Joel Cohen, a former prosecutor, is a Senior Counsel at Stroock & Stroock & Lavan LLP in New York. He is an adjunct professor at Fordham Law School, and is the author of “Blindfolds Off: Judges on How They Decide.”