It’s well known that Donald Trump had a profound bromance with Roy Cohn. He loved Roy Cohn. For Cohn’s part, he noted that Trump “pisses ice water.” Say what you will, Cohn was an accurate judge of character. But despite Cohn’s disparagement, Trump worshipped him. He called him his “killer” and from that start and for the rest of Trump’s life he has sought out “killers” cut from the same bolt of cloth as the original shyster lawyer he hired and who empowered him to do evil without consequence. Trump has found the sleazebags that you see on your TV screen on Fox News and elsewhere hoping, nay, praying that one of them turns out to be like his original killer.
Trump, as the king of sleaze and disciple of Roy Cohn, raises ethical questions in most everything he does, but nowhere so much in in his blatant breaking of the law and the crooked lawyers he hires to cover that up. Few, if any, U.S. Presidents have even thought of doing the things Trump does for his personal aggrandizement. His disdain for our democracy and justice system requires us to more fully weaponize our legal ethics enforcement.
On legal matters, America’s twice impeached, soon-to-be thrice indicted
scoundrel was tutored by the most notorious and reprehensible American lawyer
to ever have a license to practice law, the man I’ve mentioned, Roy Cohn. The ultimately disbarred Cohn was loathed by everyone who knew him, but revered by Trump and Cohn’s Mafia clients. Trite but true, you are judged by the company you keep.
Cohn wasn’t so much Trump’s lawyer as he was his tutor. Cohn urged would-be Mob Boss Trump to deny every responsibility for his wrongful behavior. When Trump was pressed to pay legitimate claims owed to most, if not all, of the contractors who provided labor and materials to his building projects, he didn’t pay them. Instead, he’d file law suits or counterclaims against them to increase their legal fees and delay proceedings as long as possible. He appears to have reveled in taking advantage of easy prey, hard-working stiffs who couldn’t afford protracted litigation.
He was a pathetic businessman, but a crafty veteran manipulator of our litigation
system. Consider what he has done to avoid scrutiny and culpability. His repulsive
loyalists (like Roger Stone, Steve Bannon) were privately told they would be
pardoned, while he had the power to do so.
He found the Attorney General he wanted, someone unscrupulous and obedient.
Bill Barr, his consiglieri, swore fealty to him, no matter how wrongful the conduct,
such as his public misrepresentation of the Mueller Report.
Witness tampering is one of the sleaze litigation business’ specialties. Trump
intimidates and entices witnesses with threats and promises of great future
opportunities. With him, there are no ethical boundaries.
Unfortunately, he has potent weapons in sleazy lawyers who operate on the edge
of ethical requirements. He has always wanted unscrupulous lawyers like Roy
Cohn and doesn’t seem to have trouble finding them.
“Out of the goodness of his heart”, Trump has paid and is paying his lawyers to
represent witnesses who need counsel. This falsely gracious undertaking by
Trump only applies, however, to a witness who could otherwise provide damning
information on Trump and his cronies. The funding for such witnesses comes out
of contributions for Trump’s Save America PAC or his Stop the Steal scam. The
Washington Post reports that Trump has spent $40 million in legal fees in the first
half of 2023 alone, all from his Save America PAC. The massive spending is for his
own legal team, but also for lawyers for his aides, advisors and supporters to
assure their loyalty. Trump’s duped contributors are paying lawyers to shut down
witnesses’ truthful testimony against him. These Trump lawyers are mired waist-
deep in sordid conflicts of interest.
Let’s start with an aphorism.
It is blatantly apparent that a client’s lawyer who is paid by someone else will
not, or is unlikely to, advise the client to do anything contrary to the interests of
the deep pocket paying the lawyer.
Therefore, a defendant’s benefactor must be someone with whom the defendant
has no conflict of interest and is unlikely to have one. A loving parent paying for a
son’s lawyer is not commonly a conflict of interest for the lawyer. Many examples
can be given for generous help to a defendant’s retention of counsel that present
no conflict for the attorney.
This well-intended allowance of legal assistance is widespread and not challenged
by courts-nor should it be.
Other situations, however, need careful scrutiny—and they aren’t getting it. The
J6 Committee alleged that multiple Trump lawyers interfered with the House
Committee’s investigation. One well-known case involved Cassidy Hutchinson, the
assistant to Trump’s Chief of Staff, Mark Meadows. Trump paid her legal fees, providing her with counsel of his choosing, Stefan “Give em the old razzle dazzle”
Passantino. Ironically, Passantino worked for Trump in the White House on issues
of compliance and ethics. Cassidy, in her 20’s, was initially apprehensive about
responding to interviews and providing testimony as the Select House Committee
began investigating the insurrection.
As she testified to the J6 Committee, her Trump-paid lawyer, Passantino, urged
her, when questioned by the Committee, to say she doesn’t recall– even though
she does recall. Of course, he assured her that no one could prove otherwise. In
other words, “Lie. You can get away with it.” Her sleazy, should-be-disbarred
lawyer (who denies all and seems to declare her a liar.) was probably right about
one thing, she probably wouldn’t have been caught committing perjury. He,
however, should not be allowed to get away with it.
Passantino committed a serious violation of the Rules of Professional Conduct
applicable to lawyers, according to her sworn testimony. He suborned perjury. He
should be disbarred for that. He’s Trump’s kind of guy—someone who would risk
his/her license to practice law for him. Trump lawyers have paid the price and
Fortunately, this young woman had more sense and moral character than her lawyer.
She got another lawyer and testified truthfully. Her testimony was and remains
very important to the ongoing investigations that are in the public interest. She
did it as a frightening matter of duty with hold-your-breath bravery.
Ms. Hutchinson’s courage in following what our legal system requires, enabled
honest virtue to prevail over Trump and his paid fixer.
All of America believed her testimony. It is doubtful that anyone believes
Passantino’s self-serving denial. What he urged Ms. Hutchinson to do is
disgustingly commonplace. This so-called compliance and ethics lawyer is likely
one of a number of Michael Cohen type fixers Trump is using to stifle credible
witnesses he faces in multiple civil and criminal cases, lawyers who will not
hesitate to suborn perjury.
Jeff Sessions, for example, testified to the Senate Intelligence Committee on
Russian involvement in the Trump Campaign stating “I don’t recall” 26 times, exercising that de minimis, wiffleball brain of his. No one believes such testimony. Its power, however, is the lack of evidence that he did recall.
Trump co-defendants and yet-to-be-indicted co-conspirators who get their legal
fees paid by Trump, cannot and will not receive the full benefit of their lawyer’s
independent professional judgment.
To be sure, other bought-and-paid-for witnesses for Trump will have failed
memories. As the stakes have so dramatically increased, however, liars under
oath could and should see jail time for perjury. Our best responders are the
prosecutors who will find contrary witnesses and help witnesses with convenient
memories understand how much prison time they will get in order to flip them.
Stripping Trump lawyers of their licenses to practice law for ethics violations is a
powerful response. Suspension and disbarment destroy a lawyer’s livelihood and
leave him/her in public disgrace. For many, it’s a fate worse than jail time. Some
Trump lawyers have lost their law licenses (for example, Rudy Giuliani, suspended
in New York, pending disbarment in federal courts, Michael Cohn, disbarred in
New York) and others will follow (for example, John Eastman, pending disbarment
To date, premier litigators are turning Trump down, minimizing his access to
capable counsel. The goal is to eliminate all gutter-dwelling advisors with a law
Despite the disciplinary successes, and others we anticipate, they are after-the-
fact. We need to address potential ethics violations at the beginning of litigation
to the extent possible. Justice requires such inquiries, which need not be
cumbersome or protracted.
With modest procedural changes, all federal and state civil and criminal trials can
require initial pleadings to address conflicts where an attorney represents two or
more parties to a case.
In the Sleaze Litigation Business, Trump-paid lawyers gloss over conflicts and
obtain consents from the co-defendants and witnesses Trump then controls.
Co-defendants and witnesses seldom understand the magnitude of potential
conflicts and their consequences. No lawyer should be the final arbiter of a client’s conflict of interest issues. With Trump, the risk of abuse is high. A Trump-paid lawyer is likely to minimize conflicts issues to get another billable client and enhance his/her standing with Trump.
The Trump-Paid Lawyers Obligations
All lawyers must follow the Rules of Professional Conduct applicable in each state.
Avoiding a lawyer’s representation of adverse interests is a primary ethics
concern. All licensed lawyers are officers of the court. Therefore, Trump-paid
lawyers must have an affirmative obligation to make written disclosures of
potential conflicts with Trump co-defendant representation and witnesses who
may have testimony adverse to Trump, filed with the initial pleadings.
The Presiding Judge’s Oversight
The Presiding Judge must assure that all parties and witnesses in a proceeding are
properly represented to avoid conflicts of interest based on who is paying their
legal fees. Judicial review of such potential conflicts must be mandatory at the
outset of all proceedings. Careful scrutiny is required of the written disclosures of
the Trump-paid lawyer, and his/her assessment of conflicts to assure the
defendant’s proper representation. Judicial review of a client’s consent to such
representation is important to assure the client fully understands the potential
adverse consequences of agreeing to the multiple representation of the Trump-
paid lawyer. The Presiding Judge must determine if a conflict can be waived by
the client’s consent. If the Trump-paid lawyer fails to provide the information, the
judge can and should order it.
The court review, properly undertaken, should limit the number of Trump-paid
lawyers involved with defendants and witnesses, most of whom would not
understand the potential danger of trusting a lawyer with divided loyalties.
Prosecutors and civil trial lawyers should challenge conflicts of interest at the
outset of any case involving Trump-paid lawyers.
Walt Nauta is one of Trump’s co-defendants in the documents case. He is an
extreme Trump loyalist, yet he is closer to a butler than an operative. He is a minor foot soldier. To date, Nauta has waffled, most recently admitting he was ordered by Trump to move document boxes.
Trump is the one that employees call Boss and Nauta and others simply take
Nauta’s culpability is inconsequential, compared to that of the “Boss.” Nauta’s
lawyer must consistently minimize Nauta’s small role, undeserving of
responsibility for 37 counts faced by Trump. The Trump-paid lawyer cannot
materially limit his/her advocacy of the new client’s position: doing so is a clear
conflict. The client’s advocacy requires placing the blame squarely on Trump.
Therefore, the Trump-paid lawyer cannot represent Nauta, without
knowledgeable consent if consent is permissible at all.
Numerous cases of multiple representation of defendants in criminal matters
focus on conflicts of interest.
For example, in an armed robbery case, two men with guns storm a bank branch
and one shoots and kills the armed security guard. The two bank robbers run for
the getaway car, driven by an 18-year-old boy. All three defendants are
represented by the same lawyer.
Like Nauta, the boy is guilty, but not to the same degree as the armed robbers.
The presiding judge will find all the bank robbers guilty but ONLY separate counsel
can properly make the case for a lesser sentence, creating the clear conflict
requiring the getaway driver to obtain separate counsel.
Similarly, from the outset of the indictment of Trump and Nauta in the documents
case, there is a looming and irrefutable conflict of interest between Trump and
Nauta for the sentencing of the defendants, if convicted.
A conflict of interest exists prior to sentencing the moment Nauta shifts his
position and provides more evidence of Trump’s mishandling of secret
A judge’s questioning of the client amplifies the importance of the consent and
may reveal a lack of knowledgeable consent, decreasing the number of witnesses who claim no memory.
Enhancing The Power of Legal Ethics
Rules of Professional Conduct applicable to all licensed lawyers are thoughtful and
well-conceived, reflecting a great body of litigation addressing ethical issues over
many years. The issue for us is enhancing enforcement. The “I don’t Recall”
defense and other forms of perjury are too common in trials and too often
unenforced against perjurers and the lawyers who suborn it. Most of the Bar is
compliant with the Rules, yet others, like Trump, have made a career out of
violating with impunity ethical obligations that assure the pursuit of justice in our
democracy. This has to stop.
More judges need to be assigned perjury trials for witness testimony and lawyers
for subornation. Perjurers need to be incarcerated and lawyers at least censured.
Judicial complaints against offending lawyers need to be sent to applicable Bars
for disciplinary action, including suspension and disbarment.
Roy Cohn left Washington in disgrace. He was all but run out of town on a rail. This is a lesson that evidently Trump missed. Lady Karma may decree that he review the lesson now. And he’s got no killer to protect him. As a matter of fact, he’s got the anti-Cohn prosecuting him. Jack Smith is as powerful a force for good as Roy Cohn was for evil. So ironically, Trump may have found his killer — except the killer is on the other team’s side.