Big-Boy Pants

Defense Attorneys Have Some Legal Advice for Sam Nunberg: ‘Pack Your Toothbrush—Prepare for Jail’

The former Trump campaign aide’s decision to potentially ignore a subpoena has put him in legal jeopardy. America’s top criminal defense attorneys have some advice: first, shut up

Photo Illustration by Lyne Lucien/The Daily Beast

Sam Nunberg, stop your mouth from moving.

That’s the legal consensus among some of the country’s top criminal defense attorneys when asked how they would counsel the onetime Trump campaign adviser, whose Triangle Shirtwaist-scale flameout on Monday led confidants—and one anchor—to worry if he was drunk-dialing cable news hosts.

“I would tell him that he’s had his fun, now put on your big-boy pants, shut up and hire a lawyer,” said Charles Clayman, founding partner and chair of Clayman & Rosenberg LLP. Clayman is a veteran New York City criminal defense attorney who has represented defendants in federal and state investigations for more than three decades—and sees in Nunberg’s refusal to comply with a subpoena from Special Counsel Robert Mueller a recipe for legal disaster.

“Hell hath no fury like a prosecutor scorned,” Clayman continued.

Nunberg ignited a cable news conflagration when he told the Washington Post that he would not cooperate with a request by Mueller to appear before the federal grand jury investigating Russian interference in the 2016 presidential election. By phone and in person, Nunberg told reporters that former Trump campaign advisor Carter Page was “a moron” and a “weird guy” who was “colluding with the Russians” during the campaign, that President Donald Trump “may have very well done something during the election with the Russians,” and called White House Press Secretary Sarah Huckabee Sanders a “fat slob.”

As the appearances wore on, friends of Nunberg told The Daily Beast that they worried he was “drinking again”—a possibility made explicit by CNN host Erin Burnett.

“We talked earlier about what people in the White House were saying about you, whether you were drinking, or on drugs, or whatever had happened today,” Burnett said, as Nunberg took a sip from a coffee cup. “Talking to you, I have smelled alcohol on your breath.”

Nunberg denied that he had been drinking, and, as he had done for much of the day, defiantly shrugged off worries that his refusal to appear before the grand jury and submit requested documents might lead to his arrest for contempt of court.

“I’m not going to jail, come on,” Nunberg told MSNBC’s Ari Melber, as Maya Wiley, a legal analyst, shook her head. “Do you think I’m going to jail?”

Nina Ginsberg, first vice president of the National Association of Criminal Defense Lawyers (NACDL) who has practiced criminal law for more than 35 years, told The Daily Beast that Nunberg needs to get ready for exactly that.

“Pack your toothbrush,” said Ginsberg. “Prepare for jail.”

Nunberg’s dismissive, and at times petulant, attitude towards Mueller’s subpoena—he told the Washington Post that he intended to tear up the subpoena on live television—has little bearing in a courtroom setting, according to celebrity lawyer Mark Geragos.

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“A Grand Jury Subpoena is a lawful document,” Geragos, who has represented Michael Jackson, Winona Ryder and Scott Peterson, told The Daily Beast. “Tearing it up has no legal meaning. What does have legal import is if you don’t show up. Failure to appear may result in his arrest and incarceration.”

Nunberg did not return requests for comment from The Daily Beast regarding his own attorney’s views on his refusal to appear before the grand jury. If the court were to hold Nunberg in civil contempt, he would likely be held in jail until he either complied with Mueller’s subpoena or until the grand jury’s term ended. The standard empanelment for a federal grand jury is a term of 18 months.

“Rip up anything else instead,” recommended Martín Sabelli, secretary of the NACDL and a former federal public defender. Nunberg needs to “explain publicly that his sense of irony has been debilitated by a very bad cold.”

But the former Trump campaign aide—who mused on Burnett’s show that his lawyer might have fired him—continued his media meltdown tour apace.

“They’re not going to send me to jail,” Nunberg told Melber. “Mr. Mueller, if he wants to send me to jail, he can send me to jail, and then I’ll laugh about it and I’ll make a bigger spectacle than I am on your show right now.”

Hours later, he told the Associated Press that he’ll likely “end up cooperating with them” after all, but hopes that Mueller narrows the scope of the subpoena.

If Nunberg ends up taking that course, Sabelli said, he has a narrow path to explain the past 12 hours of public defiance: “Explain publicly that he has two copies of the subpoena and feels very strongly that he should rip up and recycle one of the two copies for the sake of the environment but that he has framed, and will honor, the original.”