Continuing Legal Education: Tips on Providing Legal Services to Prelapsarian Man


Prelapsarian Man

It’s unclear which of Manafort’s activities best evidences his good character in the mind of the President: his proven tax fraud or his proven bank fraud. Or is it both?

In Genesis, chapter two, verse 17, God instructs Adam and Eve not to eat of the fruit of the tree of the knowledge of good and evil. As we know, in chapter 3 they disobey the commandment—and the first consequence of their disobedience (the first of many consequences) is that they realize they are bare ass naked.

Our President does not know that bank fraud and tax fraud are wrong. He is so innocent of the knowledge of good and evil that he cannot dissemble, as an ordinary evil person would do.

Entirely failing to grasp that bank fraud is wrong, he is unafraid to display to the world his lack of morality, because he does not understand that just about everyone, other than Donald J. Trump, has in fact eaten of the fruit of the tree of knowledge of good and evil.

Many choose good, some choose evil, some are in between. But at least they are aware, however dimly, of a choice to be made between right and wrong.

Altogether lacking in moral insight, in Donald Trump we truly encounter prelapsarian man.

Improvident Waiver of Privilege

N.Y. Times, Michael Schmidt and Maggie Haberman, McGahn, White House Counsel, Has Cooperated Extensively in Mueller Inquiry

Politico, Trump claims he allowed White House counsel McGahn to ‘fully cooperate’ with Mueller probe

Politico, McGahn seen as ‘undercover operative’ in Trump’s White House

N.Y. Times, Trump Lawyers’ Sudden Realization: They Don’t Know What Don McGahn Told Mueller’s Team

Donald F. McGahn II is White House Counsel, a post previously occupied by John Dean. Mr. Dean participated in obstruction of justice, perceived himself as being set up as a scapegoat by President Nixon, pleading guilty to obstruction, served time in jail, cooperated with the prosecution, and saw his sentence reduced in return for his cooperation.

A plethora of articles in recent days imply that Mr. McGahn sees history about to repeat itself—and wants the play to turn out somewhat differently, in his case.

Evidently, McGahn wants to avoid obstructing justice in the first place, and to cooperate with the prosecution in advance of any charges against others, so as to avoid the unpleasantness of time served in a federal penitentiary. That desire, as far as I can tell, is what seems to be behind the articles.

But I could be wrong. This is all passing strange.

Six Claims

The points made by the many unnamed sources may be summarized thusly. (Obviously, I don’t know how much of this is true; I’m just summarizin’ the assertions.)

One. Trump’s first set of personal lawyers believed Trump’s claim that “he had done nothing wrong.”

Two. Acting on that erroneous belief, they unwisely recommended full cooperation with the Mueller investigation.

Three. As part and parcel of their full cooperation strategy, they advised Mr. Trump to waive any privilege with respect to communications between himself and White House Counsel Don McGahn.

Trump took that advice.

Four. McGahn, taking full advantage of Trump’s improvident waiver of attorney-client and other arguably applicable privileges, sang like a canary. (It is possible that McGahn’s full-throated cooperation with Mueller was motivated by civic responsibility. It is also possible that the singing was an attempt by McGahn to wrap his posterior in multiple layers of that famous metallic substance.)

Five. Trump’s current set of personal lawyers have repented of the cooperation strategy. (One might even say that they have evolved from the modified limited hangout route to the full-on bullshit route.)

Six. Trump’s current set of personal lawyers have almost no idea what McGahn told Mueller.

And McGahn and his lawyer—yes, Virginia, the lawyer for the “Office of the Presidency” now has his own lawyer—have not the slightest intent to tell Trump’s second set of personal lawyers what McGahn told Mueller. (All this, presumably, to generate their civic-mindedness to Mr. Mueller and, as a related matter, to avoid creating further evidence of obstruction of justice.)

Tips for Counsel: Effective Legal Representation of Prelapsarian Man

This, as I said, is all passing strange. Full commentary would require a very long article. So let me just address the first of the six claims: Trump’s first set of personal lawyers believed Trump’s claim that “he had done nothing wrong.”

A moment’s reflection will suffice to show the folly of this belief on the part of Trump’s first lawyers.

Of course he said he “did nothing wrong.”

And he believed he did nothing wrong.

Because he doesn’t bloody well know the difference between right and wrong.

So, counsel, if you have the misfortune to represent a sociopath, remember that your obligation is to do what you can to protect your client.

And fulfilling that obligation begins with an accurate understanding of the legally relevant facts. The legally relevant facts may be good for you, they may be ambiguous, or they may be terrible. But you cannot do your job unless you know the facts.

And to know the facts, here’s a tip: don’t rely on the word of a sociopath.