When Your Lawyer is Acting Like H.R. Haldeman, It’s Time to Get a New Lawyer
President Richard Nixon and his Chief of Staff HR Haldeman, before Nixon resigned in disgrace and Haldeman went to prison for 18 months after being convicted of perjury, conspiracy, and obstruction of justice.
When Cassidy Hutchinson’s September 14, 2022 testimony to the J6 committee first came out, I remember being struck by three sentences in bold below (emphasis added) as I read it (from p. 48):
Ms. Hutchinson. And then just, at the end of that meeting, we had — because I had asked him about doing the, like, mock question preparation, and he said, “No.” So said, “Well, do you recommend anything that I can do to prepare for next week?” He’s like, “Get a good night’s sleep,” like, a few wishy-washy things.
And he said, “Don’t read anything about this on the internet.” He said, “Again, Cass, like, just trust me on this. I’m your lawyer. I know what’s best for you. The less you remember, the better. Don’t read anything to try to jog your memory. Don’t try to put together timelines.”
And he was like, “Especially if you put together timelines, we have to give those over to the committee. So anything you produce we have to give over to the committee. So l really” — he was like, “You can have things in front of you, but really don’t want you to, because we have to give that to the committee.”
So now I’m like, oh now I’m kind of scared. — Like, what if I want notes in front of me and he gets mad at me because I have to give them to the committee now? I didn’t know I would have to give them to the committee, but he told me I did, and he was my lawyer, so I was trying to trust him.
This wasn’t the only place in the transcript where words like these were used – they were almost a refrain. “Where have I heard this before?” I asked myself, then kept reading. Over this past weekend, while helping my mom clean out some old magazines, the penny dropped.
The date was March 21, 1974 1973 [corrected] – two days before the scheduled sentencing of the convicted Watergate burglars. At the White House, things were tense, as the scandal was growing and the coverup was in the process of unraveling. President Nixon, Chief of Staff H.R. Haldeman, and White House Counsel John Dean met for almost two hours, taking stock of the mess and looking for possible routes forward. They discussed additional payments to keep people quiet (noting that earlier payments had bought them silence through the 1972 election), and tried to figure out how to sideline the recently formed Senate Watergate committee chaired by Sen. Sam Ervin (D-NC).
Toward the end of the meeting, Nixon brought up a suggestion from his Domestic Policy Advisor (and former White House Counsel) John Ehrlichman: instead of letting the Ervin committee run riot in public, announce that all this was going to a new grand jury. From the transcript of the Nixon tapes (with all the typos, punctuation, etc. in the original, but with emphasis added):
PRESIDENT: John Ehrlichman, of course, has raised the point of another grand jury. I just don’t know how you’re going to do it. On what basis. I, I could call for it, but I…
DEAN: That would be, I would think, uh…
PRESIDENT: The President takes the leadership and says, Now, in view of all this, uh, stripped land and so forth, I understand this, but I, I think I want another grand jury proceeding and, and we’ll have the White House appear before them.” Is that right John?
p. 89 [sic, should be 88]
DEAN: Uh huh.
PRESIDENT: That’s the point you see. That would make the difference. (Noise banging on desk) I want everybody in the White House called. And that, that gives you the, a reason not to have to go up before the (unintelligible) Committee. It puts it in a, in an executive session in a sense.
HALDEMAN: Right.
PRESIDENT: Right.
DEAN: Uh, well…
HALDEMAN: And there’d be some rules of evidence. aren’t there?
DEAN: There are rules of evidence.
PRESIDENT: Both evidence and you have lawyers a
HALDEMAN: So you are in a hell of a lot better position than you are up there.
DEAN: No, you can’t have a lawyer before a grand jury.
PRESIDENT: Oh, no. That’s right.
DEAN: You can’t have a lawyer before a grand Jury.
HALDEMAN: Okay, but you, but you, you do have rules of evidence. You can refuse to talk.
DEAN: You can take the Fifth Amendment.
PRESIDENT: That’s right. That’s right.
HALDEMAN: You can say you forgot, too, can’t you?
DEAN: Sure. –
PRESIDENT: That’s right.
p. 89
DEAN: But you can’t…you’re…very high risk in perjury situation.
PRESIDENT: That’s right. Just be damned sure you say I don’t…
HALDEMAN: Yeah…
PRESIDENT: remember; I can’t recall, I can’t give any honest, an answer to that that I can recall. But that’s it.
Hutchinson is too young to have lived through Watergate, but she clearly recognized that Stefan Passantino was acting more like he was more worried about someone else’s legal issues and not her own. It took her a while, but she eventually punted him and found a legal team who agreed to work on her behalf.
Passantino was clearly channeling his inner Haldeman when he told Cassidy Hutchinson “The less you remember, the better.”
Maybe this is a new entry in the DC book of Proverbs: “When your lawyer is acting like H.R. Haldeman, it’s time to get a new lawyer.”
Reminds me of the Ed Meese testimony I do not recall 340 times. Principled conservative, heritage foundation member, reputed to have a photographic memory. Set the learning curve for lawyers and attorney generals of ill repute to be followed to this day while under oath for those who do not plead the 5th.
Eh, “I don’t recall” and “I can’t remember” are perfectly valid responses. If the examiner knows different, then they should step forward with it.
Which is why the tape/transcript of this March 21 meeting was so devastating when it was finally released. Nixon and Haldeman are clearly looking for a way to stymie the inquiry, and thought that if the WH witnesses were damned sure to speak the magic words, they could make this all go away. As John Dean noted, this is a great way to find yourself in a perjury situation.
By all means, it is fine for a lawyer to tell their client that if you don’t recall something, say so. That’s good advice. But that’s not what was going on with Nixon, Haldeman, and Dean, and not what was going on with Passantino and Hutchinson.
Do you have a better source than John Dean?
He was in the room and on the tape.
Yeah, but my question stands.
Yes, they are. You can say them over and over again. Many times it’s the truth but more often than not those statements are used in order to shade the truth from view without out right lying. The 5th has more credence than, in the case of the man who prided himself on his memory, 340 times used I do not recall, was used to hide his criminality. Just like the addict who tells the doctor his back hurts and needs more pain medication. The doc can never prove his back does not hurt and has to defer to his patient that he is telling the truth.
Law degree and bar admittance is a license to lie, Barr none.
That is a flat out ignorant comment.
LOL. Remember that next time you need a public defender – or take advantage of the consumer laws enacted over the past sixty years.
Hutchinson was indeed too young to remember Watergate, however, IIRC, she was smart enough to recognize what Passantino was trying to pull on her was “Watergate-ish”, so much so that she tracked down and read Alexander Butterworth’s Watergate memoir…how interesting that she specifically sought out Butterworth’s book, and not some other, likely easier to find book by Dean, Colson or one of the other conspirators…
I can’t find it now, but I recall hearing her talking about that, and she said it was because Butterfield held her exact job in the Nixon White House – the chief deputy to the WH Chief of Staff, which was HR Haldeman,
I had forgotten that Haldeman was not a lawyer, merely an advertising executive.
Yet, his words ring true like a police siren whistling by the White House.
So glad that Cassidy saw the light, perhaps similar to Chuck Colson’s come to Jesus’s moment.
Like yesterday?
“They discussed additional payments to keep people quiet (noting that earlier payments had bought them silence through the 1972 election), and tried to figure out how to sideline the recently formed Senate Watergate committee chaired by Sen. Sam Ervin (D-NC).“
Deja Vu..
Arrest garbage.
This is how fascists operate.
Pixie dust..
There is a big difference between telling a client “say you can’t remember” and telling a client “don’t try to refresh your memory.” The first is suborning perjury. The second is common practice, and can be perfectly ethical, according to the constipated rules of ethics used in BigLaw. A normal person might (should!) think this is a distinction without a difference. But the law doesn’t work this way.
Passantino did have a severe ethical problem in giving this advice, however. It was not in the interest of his client, Cassidy Hutchinson. It was only in the interest of Trumpworld. Ridiculous as legal ethics can be, they usually have the lawyer put the client’s interests first.
How serious a crime can obstruction of justice become? Mueller spent half of his investigation on the subject. Seems to me that obstruction of justice could include a lawyer instructing a witness to avoid steps that would help recall events. And, if more than one lawyer or person was communicating this strategy, then that would be conspiracy to obstruct justice. Are these at all serious or am I just hoping? The whole classified documents scandal comes down to obstruction of justice in my unqualified opinion.
A criminal defense lawyer buddy of mine once told me that there are two elements to the crime of obstruction of justice: 1.) The prosecutor doesn’t like you; and 2.) your name ends with a vowel. A bit of an exaggeration, maybe, but the crime sure does put a lot of discretion in the hands of a prosecutor.
“Seems to me that obstruction of justice could include a lawyer instructing a witness to avoid steps that would help recall events.” No, there is no obligation and potentially many reasons not to attempt to take such steps.
Your babbling about “that would be conspiracy to obstruct justice” is consistent with your clearly “unqualified opinion” – totally ridiculous and obviously wrong.
Ease up. Think 18 USC 1622 – Subornation of perjury, with the leverage over the witness in the form of ‘free’ legal representation and the implied promise of a job in the conservative ecosystem. It’s not a far walk to obstruction if providing compensation for the legal representation for this witness was agreed to by someone with a vested interest in suborned testimony, though proving it beyond a reasonable doubt before a jury may not be a slam dunk.
I’m looking at it a little more generally in that, firstly, my response was to the seeming implication that there would be some obligation on the part of the witness to *take* “steps that would help recall events” (as the opposite of “avoid”); there is no such duty and attempting to have a witness do so may in some circumstances be dangerous to that witness. A witness knows what a witness knows, and is under no obligation to learn – their memory may be refreshed under cross examination and that is fine.
Secondly, I take offense to the proposition that “if more than one lawyer or person was communicating this strategy, then that would be conspiracy to obstruct justice” as it is entirely inaccurate as phrased, and perhaps an *ad hominem* attack on lawyers and … uh, “persons”?
Finally, while agree with what you said, the hypothetical does not rise to “Subornation of perjury”. Had the hypo been the wit was *instructed* not to remember would be different vs. not taking steps, or even being advised to “avoid steps that would help recall events”. And of course context is all, and if the goal is provably not the best representation/interest of the client, that would be a big difference but as stated …
“persons” could well mean the orange twat waffle in conference with other attorneys or intermediaries he’s using to negotiate both counsel and payment. I don’t have any fucking problem with making my ad hominems clear where Tommy D was less inclined.
Overt instruction will make it easier to prove conspiracy and construction, but we’re dealing with mobsters who imply. “Nice job opportunities and legal counsel you have, be a shame if anything happened to them” kind of crap. That’s the problem every case against Trump and his circle has struggled with, the implied threats, the implied rewards, and the omertà which protects them and their language of implications.
Thanks!
Mario Cuomo was a brilliant politician, but he once said there would never be a president in his lifetime with a name ending in a vowel. He didn’t expect that dashing Italian boy, Barack Obama.
I thought he was a dashing Irish boy, O’Bama.
Sorry, I’ll see myself out.
Lol!