Adjunct Professor Joel Cohen wrote an op-ed in The Hill about President Trump letting his lawyers speak on his behalf in the Trump-Russia investigation.
The first rule of crisis management for public figures is this: If damaging facts will come out against you, get them out first.
That way, as a pure public relations matter, you’ll be seen as forthcoming and transparent, and your side can spin that transparency to present your side’s conduct as far less damaging (or even as a plus).
This is true whether you release the information, or you have your representative do it. In some cases, it is almost easy — if the disclosure consists of a mere release of documents, the documents are what they are.
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How risky is a public disclosure if its claims, which are directly relevant to a potential criminal investigation of you, turn out to be misleading?
Or downright untruthful? More pertinent here, will you suffer less prejudice if your spokesman made the statement on your behalf while you personally remain silent?
And does it make a difference that your spokesman is your attorney?
Can that lend gravitas to the disclosure and, if so, just how does that play?
Of course, the strategy of using a spokesperson relates to any public figure who wants to stay somewhat below the radar. However, a president who is frequently willing to “go public” with his version of the facts that might relate to an investigation of him is far better off — legally speaking — having his press representatives speak for him, while he remains silent.
If a spokesman makes a statement that turns out to be false (even if unintentionally), the president’s “distance” from the statement affords him plausible deniability: “She wasn’t authorized”; “She didn’t know the facts.”
Not only have we seen that scenario play out, we have seen tweets from the president that directly contradict statements made by his press people, particularly on the important issue of the investigation of President Trump’s campaign (“Russiagate”).
But, now, President Trump increasingly has his lawyers purporting to speak on his behalf.
Do their statements afford the president the same level of deniability if the statements turn out to be false?
What about if they turn out to be truthful, and harmful to the President or his campaign (read, “family”) by virtue of their truthfulness?
Meaning, if the attorney purports to speak for the president, can a prosecutor or a congressional committee use the attorney’s statements against him when seeking to bring charges against the president?
The answer is surprisingly simple: if the president specifically authorized his attorney to make a statement on his behalf to the public or, for that matter, to the prosecutor, the statement is called a “representative admission” — an exception to the hearsay rule that makes it admissible against the President.
True, there could be an admission if a press secretary speaks, but it is easier for a press person to wiggle out of a statement than for a lawyer.
Remember, lawyers are not just a voice, they are an advisor – or at least should be.
Now, one might think that a statement by the president that denies a pertinent fact can’t be harmful. But assume, hypothetically, the following statement: “I didn’t know my son was meeting with a Russian spy.”
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So, suppose that instead of a denial by the president, the attorney made the denial, ostensibly on the president’s behalf.
Admittedly, it will be somewhat hard for a prosecutor to establish that the attorney’s public denial was actually authorized by the president – after all, the communication would presumably be protected by the attorney-client privilege.
Still, the president and his lawyer(s) don’t want the predicament of the attorney having to dial back his public statement and say that he spoke without having first pinned down the president on the true facts.
This would be a questionable scenario for a lawyer who hardly wants to present himself, even if doing so to protect the “Leader of the Free World,” as someone who shot from the hip, in an effort to help his client through the current news cycle intact.
Nor would the president and his counsel want to litigate a prosecutor’s likely claim that the statement was authorized, pitting lawyer against client.