Legal-ethics complaint against White House lawyers

No linguistics in this post, just law. The post is about a legal-ethics complaint that I’ve filed with the District of Columbia Bar against three lawyers in the Office of White House Counsel, including White House Counsel Don McGahn.

The complaint relates to the episode in March when, two days after the House Intelligence Committee’s public hearing with Jim Comey and Admiral Mike Rogers, Rep. Devin Nunes (chairman of the Committee) held an impromptu press conference at which he breathlessly announced that “he had been shown evidence that ‘on numerous occasions, the Intelligence Community incidentally collected information about U.S. citizens involved in the Trump transition.'” (NYT [watch video]; press release.) Nunes then rushed to the White House to present this information to the president, who said that it “somewhat” vindicated his claim that President Obama had wiretapped him. Nunes was widely seen at the time as carrying water for Trump, and that view was confirmed when it was reported that the information in question had been provided to Nunes by the White House.

It was later reported that two lawyers in the Office of White Counsel had been involved in disclosing the information to Nunes. One of those lawyers, Michael Ellis, had until only a few weeks earlier been the House Intelligence Committee’s general counsel. Ellis is the primary target of the complaint, and the principal allegation against him is that his reported actions violated violated legal ethics that arose because of his previous work the House Committee’s lawyer.

In addition to McGahn, the White House Counsel, the other lawyer named in the complaint is John Eisenberg, who was reportedly one of Ellis’s supervisors. The primary allegation against them is that they may have violated the ethical duties that apply to managerial and supervisory lawyers.

The complaint’s introduction is reproduced below. The complaint is available here. Information about the disciplinary process and the relevant ethics rules is available here. The complaint was filed in late April. I haven’t heard what action, if any, has been taken on it. And I don’t know when I can expect to hear anything; maybe a matter of weeks, maybe a matter of months. But if I learn anything, I’ll post it.

Introduction and summary

The respondents

Messrs. Ellis, Eisenberg, McGahn are part of the legal staff of the Trump White House….

Mr. McGahn is White House Counsel, and as such he is the head of the Office of White House Counsel and is President Trump’s chief legal advisor.

Messrs. Ellis and Eisenberg hold multiple White House positions:

  • They are part of the Office of White House Counsel. Mr. Eisenberg is Deputy Counsel for the President for National Security Affairs, and Mr. Ellis is Senior Associate Counsel to the President.
  • They also hold positions on the staff of the National Security Council. Mr. Eisenberg is National Security Council Legal Advisor and Mr. Ellis is Deputy National Security Council Legal Advisor.
  • Finally, both Mr. Ellis and Mr. Eisenberg hold positions as assistants to the president. Mr. Ellis is Special Assistant to the President and Mr. Eisenberg is Deputy Assistant to the President.

Immediately before Mr. Ellis joined the White House staff, he served as general counsel to the House Permanent Select Committee on Intelligence (“the Committee,” “the House Committee,” or “the House Intelligence Committee”).

The violations

At issue in this complaint is conduct by the respondents that relates to the actions of Rep. Devin Nunes, chairman of the House Intelligence Committee, as a de facto surrogate of President Trump.

The con­duct at issue relates to Rep. Nunes’s contention that communications of U.S. citizens involved in the Trump transition had been incidentally collected as part of federal surveillance activities. That contention was part of an effort to justify President Trump’s accusation that former President Obama had tapped his phones. However, Rep. Nunes turned out to have been acting in concert with the White House, and his statements were based on information that had been provided by (or at least with the assistance of) staffers at the White House.

Among those staffers, according to reports by the New York Times and Washington Post, were respondents Michael Ellis and John Eisenberg. At issue in this complaint are the roles played by Mr. Ellis and Mr. Eisenberg in the provision of the intelligence information to Rep. Nunes. Also at issue are the acts (and failures to act) of Mr. McGahn and Mr. Eisenberg in their capacities as managerial or super­visory members of the White House staff.

This complaint focuses primarily on Mr. Ellis. The principal allegation against him is that he vio­lated RPC 1.9 (governing “revolving-door” conflicts) and RPC 1.11(a) (governing former-client conflicts) by working on a matter in his current position at the White House that is the same as, or substantially related to, a matter in which he participated personally and substantially in his previous position as general counsel to the House of Representatives Permanent Select Committee on Intelligence immediately before he began working at the White House.

In particular, Mr. Ellis’s actions in connection with the disclosure of intelligence information to Rep. Nunes were substantially related to the subject matter of the Committee’s investigation into the Russian interference in the 2016 presidential campaign, into possible collusion with Russia by persons associated with the Trump campaign, and in to possible government surveillance of persons associated with the Trump campaign. In addition, Mr. Ellis’s actions were substantially related to the investigation itself, and were adverse to the Com­mittee’s interests.

In addition to violating RPC 1.9 and 1.11(a), Mr. Ellis’s conduct may have involved dishonesty, fraud, deceit, or misrepresentation, in violation of RPC 8.4(c), or may have seriously interfered with the administration of justice (namely, the House Committee’s investigation), in violation of RPC 8.4(d). I say that his conduct “may have” violated those rules because the information I am aware of is not sufficient to support a conclusion one way or the other. However, this is an issue that warrants investigation.

Mr. Eisenberg may have similarly violated RPC 8.4. Like Mr. Ellis, he was reportedly involved in the provision of intelligence information to Rep. Nunes. And as is the case with Mr. Ellis, the information that I am aware of raises, but does not answer, the question whether Mr. Eisenberg violated Rule 8.4.

Finally, Mr. Eisenberg and/or Mr. McGahn may have violated their obligations under RPC 5.1 as attorneys who had managerial or supervisory authority over Mr. Ellis.

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