On Tuesday, the Office of the White House Counsel delivered an eight-page letter to Democratic House Speaker Nancy Pelosi (D-CA) rejecting the very legitimacy of the impeachment inquiry threatening this presidency.
The letter was notable not for the conclusion it reached—few suspected that the administration was going to cooperate with House Democrats—but for the broadsides and rhetorical flourishes it featured. That’s because this letter wasn’t fully written by lawyers.
It was crafted, in large part, by President Donald Trump himself.
According to two people familiar with the process, White House Counsel Pat Cipollone had multiple meetings with President Trump in the days leading up to the issuance of the letter. During those meetings with Cipollone, the president would get especially animated when names such as Rep. Adam Schiff (D-CA), chair of the House Intelligence Committee leading the probe into the whistleblower complaint, came up. The sources said that Trump enthusiastically suggested adding various jabs at Democratic lawmakers and would request that their “unfair” treatment of him be incorporated into the letter.
The result was what Bob Bauer, who served as President Obama’s White House counsel, called a “remarkable” and “extraordinarily political document.”
Trump had also privately consulted on the letter with Rudy Giuliani, his notably pugnacious personal lawyer who is at the center of the Ukraine and Biden-related scandal engulfing the administration. Trump talked to Giuliani about how he and the White House should proceed in fighting back and challenging the legitimacy of the impeachment probe, one of the sources noted. Reached for comment on Thursday evening, the former New York mayor and Trump confidant repeatedly declined to confirm or deny this.
“President Trump took the unprecedented step of providing the public transparency by declassifying and releasing the record of his call with President Zelenskyy of Ukraine. The record clearly established that the call was completely appropriate and that there is no basis for your inquiry,” the Cipollone-signed, grievance-riddled letter reads. “The fact that there was nothing wrong with the call was also powerfully confirmed by Chairman Schiff’s decision to create a false version of the call and read it to the American people at a congressional hearing, without disclosing that he was simply making it all up.”
A White House spokesperson did not provide comment for this story.
That Trump has leaned so heavily on his own intuition in crafting the legal response to his impeachment crisis has come as no surprise to those who know him. The president has—however misguidedly—long thought of himself as more keen and cunning than his advisers. And from his rise in real estate and reality TV through his ascendance to the presidency he has shuddered at those individuals who have sought to curb his impulses, even when they’ve argued that those impulses bend the limits of the law.
And yet, Trump’s current go-with-your-gut approach stands out to many as a uniquely risky gamble. When his White House was navigating Special Counsel Robert Mueller’s probe into 2016 election-meddling, the president early on leaned on two grey-bearded attorneys—Ty Cobb and John Dowd—and Don McGahn, a White House counsel with deep connections in Republican circles. Beyond that, he brought in Emmet Flood, a Washington, D.C., attorney well-steeped in special and independent counsel investigations, having lived through one himself.
Those lawyers are now gone. And Trump seems inclined to do little to buff up the ranks. The one person that is reportedly being added to his legal team is a former member of Congress, Trey Gowdy, who, the president says, can’t even start until January because of ethics laws.
Gowdy’s apparent restriction is particularly problematic given the fact that Democratic lawmakers wish to hold an impeachment vote before the year’s end.
Because the president has chosen to surround himself predominantly with loyalists, his administration has often been beset by fissures between the more trusted advisers and the institutionalists.
In mid-2017, for example, Giuliani showed up at the entrance of the Department of Justice unannounced, and called Deputy Attorney General Rod Rosenstein’s office to insist on a meeting, The Washington Post reported and a source familiar with the incident confirmed. The president’s personal lawyer was there to talk about one of his clients, Iranian-Turkish gold trader Reza Zarrab. But Rosentein declined to take the meeting.
Trump himself grew so distrustful and unfriendly toward McGahn by the end of McGahn’s tenure that he’d even ask those close to him, “is [Don] wearing a wire?” according to a source with knowledge of the comment. (Axios was first to report this suspicion earlier this year.) Victoria Toensing and Joe diGenova, two informal legal advisers to the president who also sought to aid Giuliani on some of the Ukraine effort, are Trump superfans. And when news leaked out that Gowdy was being hired, they went on record to bash the decision.
Veterans of past White House counsel’s offices say they aren’t surprised by the current landscape inside the White House. Few well-respected attorneys in the nation’s capital have evinced any desire to work with the president. “At every level it is fraught with risk,” said one. And the president appears to have no desire to consider legal counsel that diverts from his own primal political desires.
“The lesson he learned from all that was fight, fight, fight,” said a former senior official in the White House Counsel's Office. “Not to follow the Ty Cobb and Emmet Flood approach and just get through it, which is what worked. That approach, the Cobb-Flood approach, is what White House counsels have done in the past, which is to try to accommodate, to get it behind you, to not give up the stuff you really want but the stuff you don’t need. That’s not the lesson he learned.”
Past administration staffers cautioned the damage being done is not just visible in the short term. By attaching his name to the eight-page letter, Cipollone will make it harder to craft future legal documents that will inevitably have to be issued in the course of the impeachment proceedings. “There is no reason that any of the other letters coming from him will be assumed to be written in good faith,” said the former senior White House Counsel’s Office official.
And then there is the damage to the office itself. As Bauer noted, the White House counsel is not the president’s lawyer but the lawyer for the presidency. Cipollone and his staff can and should reflect Trump’s wishes but they must do so within clear professional and legal boundaries.
“There are some very manageable lines and I don’t think those lines have been at all observed here,” said Bauer.
“Put it this way,” he added, “the White House counsel never wants to come across as anywhere close to the way Donald Trump’s doctor did in 2016.”
—With additional reporting by Betsy Swan