Until now, Trump’s legal arrangements have been in a gray area of regulation. But now, critics are trying to change that.
In 1994, as a slew of scandals were popping up around President Bill Clinton, an attorney who worked with his defense team visited the Office of Government Ethics in Washington to ask a simple question in person: Could the president of the United States accept free legal services from his personal lawyers?
Flash forward 25 years, and President Trump is doing things very differently. Former New York City Mayor Rudy Giuliani, the most high-profile member of the personal legal team during both the Russia investigation and the Democrats’ ongoing impeachment inquiry, is providing free legal services to the president.
“The Office of Government Ethics has never until now started developing any consistent rules and regulations to govern legal expense funds for the executive branch,” Holman said. “So if you go back and take a look at the few opinions they’ve offered over the course of the last several decades, you’ll find them completely contradictory and inconsistent.”
While Sekulow wouldn’t discuss details, he insisted that there wasn’t anything improper being done. “I can’t discuss how we’re being paid, but it’s obviously appropriate,” Sekulow said. Until the OGE issues new rulings, the issue of presidential legal representation will likely remain sparsely regulated, in part because there is limited precedent for a president needing extensive personal legal services. In the 1990s, when Clinton’s lawyers went to the OGE, the president’s use of a team of personal attorneys for a major case was largely uncharted legal territory in the landscape of new regulations enacted after the Watergate scandal.
“Legal defense funds and pro bono legal services offered to any government employee, including the president, raise a host of conflict of interest and ethics questions that require answers,” Amey said. “The Office of Government Ethics is seeking advice and might have a rule or guidance in 2020, but government ethics officials are facing this problem now, and any decisions about receiving money or services should be handled with the public interest in mind.
Tony Essaye, a retired attorney who was the executive director of one of former President Bill Clinton’s legal defense funds, said pro bono work would raise “a lot of issues and questions ... as to where people are giving free services to the president they get a certain degree of influence.” Light said Trump’s legal team should be keeping meticulous records and tracking their billable hours. “To be on the safe side, one would urge any president, not just Trump ... to register the pro bono gift of legal services for future review,” said Light.
Ultimately, there were two trust funds established for the Clintons’ legal defense — and they provided a dramatic example of how the president’s legal expenses could be an attractive target for outside interests seeking to gain influence with the White House.Bill and Hillary Clinton established the first fund in 1994 as the president faced legal issues, including a sexual harassment suit from Paula Jones.
“The money would not go to the Clintons. It would go directly to the law firms, and that’s essentially what occurred,” Essaye explained. But the questions surrounding potential conflicts of interest could prove troublesome for Trump’s legal team, particularly for Giuliani, whose sources of outside income have attracted the attention of law enforcement agencies.
While Giuliani has attracted the most attention because of his pivotal role in the impeachment inquiry, the president’s other top lawyer, Jay Sekulow, also has income sources that have come under scrutiny. ACLJ sends funds to partner organizations around the world, but Sekulow at first said ACLJ doesn’t “get foreign money,” but then offered a clarification.
On his daily radio broadcasts, Sekulow is fond of saying that he switches between “wearing my ACLJ hat or my lawyer for the president hat.” But even Sekulow said the ACLJ’s work has overlapped with some cases involving Trump because of the organization’s focus on “constitutional issues.” However, Sekulow said the ACLJ is “very specific about ... making sure that the work of the ACLJ fits within the parameters” of its mission.
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