Lanny Davis and Rudy Giuliani: A Savage Journey into the Heart of Bad Lawyering

If you hire a lawyer more known for his or her ability to spin and grandstand on television than their experience in a courtroom, then you should expect them to make some glaring legal mistakes, and that’s exactly what Rudy Giuliani and Lanny Davis have done. Giuliani has an excuse, though, because he apparently is satisfied that his client will never be in a courtroom for so long as he remains the president of the United States. As a result, he’s only concerned with public relations:

This spring, Giuliani met with [Robert] Mueller and his staff, and Giuliani pressed the special counsel about whether he believed that a sitting President could be criminally indicted. According to a 1973 opinion from the Office of Legal Counsel, a President should not be subject to indictment while in office because it “would interfere with the President’s unique official duties, most of which cannot be performed by anyone else.” (A 2000 legal opinion from the Justice Department reached a similar conclusion.) Giuliani recalled Mueller saying, “Well, we’re going to reserve our thinking on that.” Giuliani told me that after “two days, with a lot of going back and forth,” Mueller’s team affirmed that it wouldn’t indict, regardless of the result of the investigation. (Mueller’s spokesman declined to comment.)

This apparent concession has shaped Giuliani’s defense of Trump ever since. He now knew that there would never be a courtroom test of the President’s actions; the only risk to Trump was that Mueller’s report could lead Congress to impeach the President, a process that is political as much as it is legal. With impeachment, Giuliani explained to me, “the thing that will decide that the most is public opinion,” and the perception of Mueller is as important as that of Trump. “If Mueller remains the white knight, it becomes more likely that Congress might at some point turn on Trump,” he told me. As a result, Giuliani has set out to destroy Mueller’s reputation.

Lanny Davis is representing Michael Cohen, the president’s former Ray Donovan-styled fixer. And Cohen has already pled guilty to eight felonies. His criminal liability is probably so extensive that its breadth is ultimately unknowable even to himself, so the last thing he needs is a lawyer who will make his problems worse. But that’s what Lanny Davis did when he went on television and said that Cohen could attest that Donald Trump Sr. had been aware of the Trump Tower meeting with agents of the Kremlin (attended by Manafort, Kushner and Donald Jr.) before it occurred.

If the story were true, it would have done untold damage to President Trump while also creating further legal jeopardy for Cohen, who has already pleaded guilty to eight felonies. As Axios pointed out, “Cohen told lawmakers last year, in sworn testimony, that he didn’t know whether then-candidate Donald Trump had foreknowledge of the 2016 Trump Tower meeting with Russians.”

It isn’t as if Cohen’s old testimony was sitting forgotten in a file. The Senate Select Committee on Intelligence, well aware that Cohen had denied to them any knowledge that Trump knew about the meeting, asked Cohen’s lawyers “whether Mr. Cohen stood by his testimony.” Chairman Richard Burr and vice chairman Mark Warner, in a joint August 21 statement, said that Cohen’s legal team “responded that he did stand by his testimony.”

Pressed by the New York Post—for which he had been an anonymous source—Lanny Davis apologized for spreading the Trump Tower story.

Lanny Davis may have had his facts wrong, but it’s more likely that he dangled information to Robert Mueller without realizing it would amount to a confession of congressional perjury for his client. Once he understood his mistake, and when Mueller didn’t knock down his door with an offer of immunity, Davis had to fall on the sword and disavow completely what he had just suggested to the nation his client would say about the Trump Tower meeting.

This kind of problem, by the way, explains why Trump’s lawyers don’t want him making any statements under oath.

It seems obvious now that Cohen is considered a target of the Mueller investigation. He made a plea deal of sorts with the Southern District of New York, but it didn’t include any immunity deal unless it is deeply buried under seal. Cohen would obviously like to get the target off his back, but apparently he’s not going to get anywhere with some uncorroborated story about what he heard Trump say about a meeting with Russians.

What’s alleged in the Steele Dossier is that Cohen traveled to Prague with several colleagues in late August or early September 2016 and discussed with Russian officials how to deal with the fallout from the revelations about Carter Page and Paul Manafort. They also allegedly discussed some plan to help compensate Romanian hackers (plural) and get them to a safe house somewhere in Bulgaria.

For Eric Felten of the Weekly Standard, this part of the story has already fallen apart. Felten’s logic makes a certain degree of sense, but I think he’s overconfident.

Here are the basics. When the Washington Post reported in June 2016 that Russians had hacked into the DNC and carried off a bunch of sensitive emails and files, the next day a persona calling himself Guccifer 2.0 appeared, claiming to be a solo Romanian hacker who was not allied with the Russians and who had done the hacking all by himself. In Mueller’s court documents against Russian military intelligence (GRU) hackers, he makes it clear that Guccifer 2.0 was a ruse. He was created by the GRU for the purpose of causing confusion and shifting blame away from themselves. For Felten, this means that Steele must have fallen for this gambit. Someone fed him bad information based on the faulty premise that Romanian hackers really were responsible for the theft of Democratic files. And if Steele’s information on the hackers was wrong, then it is nearly certain that the rest of his report is wrong, too.

I think we should hold off on that assumption. For starters, as I’ve already mentioned, the behavior of Cohen, Cohen’s lawyers, and Robert Mueller are all best explained if Cohen is a target of the investigation, and he would not be a target for covering up affairs, cheating on his taxes, or doing undisclosed lobbying work. Secondly, four and a half months ago, McClatchy journalists Peter Stone and Greg Gordon reported the following:

The Justice Department special counsel has evidence that Donald Trump’s personal lawyer and confidant, Michael Cohen, secretly made a late-summer trip to Prague during the 2016 presidential campaign, according to two sources familiar with the matter.

Confirmation of the trip would lend credence to a retired British spy’s report that Cohen strategized there with a powerful Kremlin figure about Russian meddling in the U.S. election.

It would also be one of the most significant developments thus far in Special Counsel Robert Mueller’s investigation of whether the Trump campaign and the Kremlin worked together to help Trump win the White House. Undercutting Trump’s repeated pronouncements that “there is no evidence of collusion,” it also could ratchet up the stakes if the president tries, as he has intimated he might for months, to order Mueller’s firing.

Stone and Gordon are careful and well-respected reporters. They are certain that they have this information correct, and there’s little reason to doubt them. Naturally, they could be wrong. But I doubt it. Their information was very specific:

But investigators have traced evidence that Cohen entered the Czech Republic through Germany, apparently during August or early September of 2016 as the ex-spy reported, said the sources, who spoke on condition of anonymity because the investigation is confidential. He wouldn’t have needed a passport for such a trip, because both countries are in the so-called Schengen Area in which 26 nations operate with open borders. The disclosure still left a puzzle: The sources did not say whether Cohen took a commercial flight or private jet to Europe, and gave no explanation as to why no record of such a trip has surfaced.

This would explain why Cohen is a target and why Mueller didn’t take the small fish bait of information about the Trump Tower meeting. If Cohen went to Prague and subsequently lied about it (and Lanny Davis continues to deny he made this trip), then there must be a very incriminating reason. And Cohen is certainly not going to confess to making the trip (perhaps, if possible, even to his lawyers) until he has an immunity deal in hand.

But what about the fact that Romanian hackers weren’t responsible for the DNC hacks? Doesn’t that prove that Steele was being fed bad information? The answer is twofold. Guccifer 2.0 claimed to be Romanian, it’s true, but he also claimed to be working alone, not as part of some large team of Romanian hackers. Moreover, the detailed memo about Romanian hackers was written by Christopher Steele on December 13, 2016, long after the intelligence community had concluded that Guccifer 2.0 was a composite character created by the Russians. Steele was certainly not referencing Gufficer 2.0 in that memo. If you look at the actual allegations, the crimes are described multifariously as spreading viruses through porn traffic and bots, planting bugs, and doing “altering operations” against Democratic leadership. The theft of data is mentioned, but not specifically as it related to any individual or entity.


There seems to be no basis for connecting these allegations to Guccifer 2.0 or for assuming that Christopher Steele was in some way confused about this matter. The Russians’ efforts to meddle in the campaign were extensive and utilized multiple intelligence agencies, the Foreign Ministry, the Russia media, oligarch-led and funded business enterprises, deniable third parties (both real like WikiLeaks and fake like Guccifer 2.0 and the Seth Rich story), and on-the-ground recruiters and agents. So far, Mueller has brought to light just two major pieces of this, with his February 2018 indictment of people associated with the Internet Research Agency of St. Petersburg and his July 2018 indictment of twelve GRU officers.

The second response to the possibility that Steele had bad information on Cohen’s alleged trip to Prague is that it would be quite surprising if he had all the information in a perfectly accurate form. Only a firsthand source could provide that kind of unassailable intelligence, and it’s doubtful that he had that kind of source. Also, even if he was fed some bad information along with some good information (to make it convincing), why would people want to implicate the then little known Michael Cohen?

This is still going to come down to whether or not Cohen was in Prague because he’s denied it up and down from the beginning. If he went, he took pains to avoid detection. If he went, he’ll need to explain everything about the trip to Mueller’s investigators and the American people.

If he went, he might just still have a get out of jail free card.

Hopefully, Lanny Davis won’t start telling everyone about it before he’s got a deal.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.