One Scholar On Legal Questions Raised By Michael Wolff's 'Fire And Fury'

Jan 5, 2018

Journalist Michael Wolff’s new book, “Fire and Fury: Inside the Trump White House,” was released Friday.

Publisher Henry Holt & Co. decided to push the publication date up by four days after President Trump’s legal team issued a cease-and-desist letter to Wolff, the publisher and former White House chief strategist Steve Bannon, who was interviewed at length for the book.

Meanwhile, a report from The New York Times claims that Trump urged his White House Counsel Donald McGahn to push Attorney General Jeff Sessions not to recuse himself from the Justice Department’s investigation into Russian collusion with the Trump campaign. The report says the president exploded in front of aides, saying he needed his attorney general to protect him.

Here & Now‘s Robin Young speaks with law professor and commentator Jonathan Turley (@JonathanTurley) about the book’s legal implications, and Trump’s reaction.  Turley calls the The New York Times report “a very troubling account.”

“I was one of the early voices saying that Jeff Sessions should recuse himself, and I believe he made the right decision, and indeed, the irony is that he made a decision that was in the best interest not only of the Department of Justice but of President Trump,” he says. “But what’s particularly troubling is the account that the president even asked where’s my Roy Cohn? After one of the most disreputable figures in the legal field.”

In fact, Cohn was a former aide to Sen. Joseph McCarthy during the Red Scare and his witch hunt for potential communists. Cohn was also a mentor to young Trump.

Interview Highlights

On Trump’s association with attorney Roy Cohn

“It’s an unfortunate association because Cohn is viewed by most lawyers as being this rather dark figure, somebody who mix politics and law, and largely yielded to the former over the latter. Eric Holder has been criticized by many, including myself, for a very political tenure at the Justice Department. Donald Trump actually criticized Eric Holder and his role in protecting Barack Obama during various controversies. So it’s particularly curious that he would be calling for Sessions to model himself after Eric Holder if in fact that happened.”

On reports Trump urged his White House counsel to encourage Sessions not to recuse himself

“For people who believe that the president wanted to obstruct the investigation into Russian collusion, this is certainly going to support that narrative. It also raises serious questions about the role of the White House counsel. Most lawyers put in a position of McGahn at that moment would have declined, and would have explained that it would be very troubling for the White House counsel to go to an attorney general and try to get him not to recuse himself for ethical reasons.

“So it raises more questions about whether the White House counsel is maintaining these bright lines. The failure to respect those lines has cost the administration and President Trump dearly. It is doubtful that we would still have this investigation if the president did not commit the untimely firing of [former FBI Director] James Comey.”

On if Trump has legal standing to cease publication of “Fire and Fury”

“Well, there’s two separate questions here. One is whether the president could ever have succeeded in a prior restraint preventing the book from being published. On that question the answer is clear: No. He doesn’t even come close to the standard laid out by the Supreme Court.

“The second thread was that he could sue the author or Steve Bannon for defamation. That is not particularly compelling. The reason is that the president is a public official and under the New York Times v. Sullivan standard, he is subject to a much higher standard than average citizens. So he would have to prove that either they knew that material was false, or they showed a reckless disregard of the truth. That’s very doubtful that he could ever maintain that in court.”

On his advice for Trump

“I think that the advice for President Trump hasn’t changed. It’s just that it hasn’t been heard, and that is he has to realize that it is better for him not to be involved — and that’s really difficult for Donald Trump. I think people too often assume that his actions are incriminating, that they reflect some underlying criminality. That may not be the case.

“Donald Trump made his career by being this Type A personality who goes and manages problems, who injects himself, who through power personality changes the course of business deals. It’s hard to get a client like that to accept that it’s better at times to remove yourself. And he may have learned that lesson.

“Many of these allegations, including the most recent ones, occur in that early period when he became president, and it was a sharp learning curve, and it has cost him dearly. But he may have learned that there is a difference between a CEO and a president.”

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