Trump’s personal attorneys remain largely on the sidelines as the president contends with impeachment inquiry

In the face of allegations that Trump abused his office for political gain, the White House lawyers are not sharing with his personal attorneys some internal government records central to the inquiry about the pressure the administration put on Ukraine, citing the need to protect executive privilege.

The unusual decision to have the White House counsel captain the president’s defense — at least for now — departs from how previous presidents have contended with impeachment proceedings and has worried some Trump allies, who believe a multipronged defense would be stronger.

It also contrasts sharply with the legal strategy the White House deployed in responding to former special counsel Robert S. Mueller III’s investigation. In that case, Trump’s personal lawyers led his defense in coordination with select White House attorneys.

Since then, Cipollone has become the White House counsel, replacing Donald McGahn, who considered himself a fact witness and recused himself from dealing with the special counsel’s office. With the impeachment probe, Cipollone has taken the lead, operating separately from Jay Sekulow, a conservative Christian legal advocate who is the leader of the president’s personal legal team, joined by seasoned white-collar defense lawyers Jane and Marty Raskin.

Cipollone, Sekulow and the Raskins declined to comment. Giuliani and his lawyer did not respond to requests for comment.

The White House counsel has been in regular contact with Sekulow, and the two men agreed that Cipollone should maintain the lead role as the House moves this week to draft articles of impeachment, one of the people said. However, that arrangement could change quickly, depending on how the House drafts the articles of impeachment, people familiar with the discussions said.

Cipollone began meeting with senators a few weeks ago to discuss the format of an expected Senate trial and is scheduled to attend a lunch Wednesday with Senate Republicans.

Lawyers who have experience with prior impeachment proceedings and experts in executive privilege said the White House’s legal strategy deprives Trump of a personal advocate who is well-versed in facts that could be damaging or helpful to his defense.

“It doesn’t make a lot of sense to me,” said Bob Bennett, a veteran white-collar defense lawyer who represented President Bill Clinton when he faced a sexual harassment lawsuit from Paula Jones.

White House lawyers and Trump’s attorneys determined that the impeachment probe centers squarely on actions he took in his official role as president, which are properly defended by the White House counsel. They view the scenario as very different from the 1990s, when the House investigated Clinton for lying about a personal, sexual relationship with a White House intern.

Lawyers in the counsel’s office have also expressed concern that sharing records with people outside the White House could potentially weaken their efforts to block the release of documents to Congress. Cipollone’s office has asserted a very broad claim that it will not provide any White House records to House investigators because they are all probably covered by executive privilege.

Trump’s allies argue that the president acted properly in withholding aid and pushing for an investigation of the Bidens out of concern about corruption in Ukraine.

“This is the White House defending his actions as president,” said one person briefed on the legal decision who spoke on the condition of anonymity because of the ongoing inquiry. “It’s completely different than Clinton, which was about his personal actions. It’s the mirror opposite of the Clinton probe.”

That has put Cipollone front and center as the president’s primary legal advocate.

When the House impeachment inquiry began, the White House counsel sent congressional leaders a fiery letter in which he declared the probe unconstitutional and vowed not to cooperate.

In September, Cipollone’s office began an intensive review of internal records and emails to determine the facts of White House interactions with Ukraine. The review looked closely at how the administration held up nearly $400 million in aid to Ukraine and what officials did in response to alarm among some government officials who feared Trump had improperly pressured Ukrainian President Volodymyr Zelensky in a July 25 call.

On Sunday, Cipollone notified the House Judiciary Committee that Trump would not participate in its upcoming hearings, criticizing the effort as a partisan effort by Democrats to tarnish the president.

Trump’s personal lawyers could eventually increase their role, depending on which impeachment charges are brought, whether any include matters investigated by Mueller and what form the future Senate trial takes. The personal legal team has the most experience with the facts of the special-counsel investigation.

In past impeachment inquiries, presidents had the benefit of personal counsel at their side amid the proceedings. Clinton had David Kendall, who worked closely with White House counsel Charles Ruff. President Richard M. Nixon was represented by his personal counsel James St. Clair before the House Judiciary Committee.

Several legal experts said they see no legal reason — and little benefit to Trump — to keep the president’s personal lawyers at bay. Experts note that a president’s personal advocates have a unique and valuable role in building a defense, one that is different than a White House counsel defending the institution of the presidency.

They also questioned the wisdom of holding back records from the president’s outside advocates, noting that they expect courts to reject Cipollone’s broad claim that all White House records related to Ukraine are protected by executive privilege. Keeping the records from Trump’s personal lawyers doesn’t better shield them in the eyes of the law, they said.

“If it’s relevant to a legitimate investigation that seeks factual information about potential wrongdoing, I don’t think a claim of executive privilege would be upheld by the courts,” said Mark J. Rozell, an expert on executive privilege and dean of the government and public policy school at George Mason University. “It’s not privileged information; it’s evidence.”

Rozell said the strategy of withholding records from all parties may be motivated by a desire to “run out the clock” — to create a delay in ultimately turning over records if a court orders it.

“They may want to keep it away from a congressional committee or others trying to peer into the inner sanctum of the White House,” Rozell said, “but the president’s own attorneys? Why? Other than in a confessional, I can’t imagine anyone less likely to leak this information than someone’s personal lawyer.”

Mike Conway, who was counsel to the House Judiciary Committee during the impeachment inquiry of Nixon, said sharing records with the president’s attorneys will not increase their chances of public release.

“First, the communications between the president and his attorney would be protected by the attorney-client privilege. Congress will honor that privilege,” Conway said. “Second, providing documents to the lawyer does not alter its status as to privilege. If the document is protected by executive privilege, it would remain so. If it is not protected, giving it to a lawyer does not make it privileged.”

Trump’s limited legal team leaves open a big question: Who would represent the president in a Senate trial?

During the special-counsel investigation, Trump had difficulties in recruiting a high-profile white-collar attorney. More than a dozen well-known lawyers turned him down initially, and as The Washington Post reported, he struggled to find a replacement after his personal attorney John Dowd quit in frustration in spring 2018.

In April 2018, Trump hired Giuliani and the Raskins, who drew praise for their below-the-radar professionalism and rigor. Giuliani, a longtime Trump advocate, largely served as the president’s surrogate and defender in television appearances. With the House launch of an impeachment investigation in September, the Raskins returned from a short hiatus after the Mueller investigation and rejoined Trump’s legal defense.

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