Former Trump Lawyer Ty Cobb Calls For “As Much Transparency as Possible with Mueller Report”

Ty Cobb: 

Doug Simon:    Contact at dougs@dssimonmedia.com

Below is a full transcript of Ty’s answers. The event was broadcasted live on www.commPRO.biz.

The full panel discussion can be found here. Other panelists included Stefan Passantino, Government Relations, Political Law and Public Policy, Michael Best & Friedrich LLP; Suzanne Rich Folsom, Award-Winning General Counsel and Chief Compliance Officer; and Richard S. Levick, Chairman and CEO, LEVICK.

Doug: In the interest of public trust, do you think it should be made as public and available as possible, especially to exonerate people perhaps falsely accused?

Ty: I think there should be as much transparency as possible, but it comes in a very strict legal setting. During the Clinton administration, the Hill and the president let the old independent counsel act lapse. They replaced it with a special counsel act in 1999 and that is much more rigorous in terms of process. Process is pretty simple; the report gets submitted confidentially. It could be five pages. It could be two hundred. But it goes confidentially to the attorney general, the attorney general is only obligated to communicate the fact that he’s received the report, and if there has been an instance where the Justice Department refused to permit the special counsel to take an action that he wanted to take, then the attorney general has to report that to Congress as well and explain. There’s no obligation to make the report public. There is a public interest consideration, but it doesn’t generate any rights for either Congress or individuals in court. It can’t be litigated because there are no rights created out of that out of that act. So Congress could subpoena it, it would be subject to executive privilege claims should the administration want to do it. My guess is that, you know, whatever is presented by the Justice Department would be unsatisfactory to certainly the Democrats, likely the press, and there’ll be constant pressure to do it. There was also the possibility of leaks

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Doug: All of it out there might be one extreme, and I think most reasonable people would agree that “OK. There might be certain things that should be redacted from that.” But is it, you know at a time— and this sessions called Truth on Trial, you know—lacking transparency with truth so debatable, so fungible these days isn’t it in the national interest to try and get as much out as possible? And Suzanne, Richard I’ll let you guys weigh in on this in a moment.

Ty: Well there’s some difficulty with that which, is you know, I’ve read recently people are saying “Well you can go to the Leon Jaworski route or the Ken Starr route, and you have a short report or a multi volume treatise. But the reality is there are legal considerations, and there are two statutes in particular that directly affect the what can be released. One involves grand jury secrecy. One involves the discretion of the attorney general in connection with however he wants to summarize or put something out. Would he do the report with redactions? I doubt that I think he’d be more likely to be a Justice Department summary of the findings, if he did that. But you just don’t know. And so you know and this gets into the issue of you know people complaining about Star and inability to put that report out there and all the passion that was ginned up at that stage of the game that forced the new statute, which was designed to pull back on. Because that’s the legal restriction.

Doug: Yeah that detail was left uncovered in the Starr report.

Ty: Right, and Bob Mueller has done an effective job. I believe in the indictments and sentencing memos of telling the story that you know he has. So it’s not necessarily that there aren’t a lot of facts already out there. It’s just you know, on everybody’s collusion meter, they want to see where things land. And I’m not sure that everybody’s gonna be satisfied on that.

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Doug:  I see on TV Michael Avenatti, Rudy Giuliani, Lanny Davis they don’t seem to me to be acting as attorneys in that role, but as public relations spokespeople. And this also happens within corporations. So what are the implications of quote “lawyers” becoming PR spokespeople? And does that have an issue, with you know, does that mess with attorney client privilege? What can they say, what should they say, what shouldn’t they, where do they sort of draw that line?

Ty: There are very real dangers when you do that. As Lanny Davis found out recently when he misled the country with regard to certain facts that Cohen would allegedly testify to, and he had to walk it back, clearly didn’t have his client’s authority to say it, turned out not to be true. And when he makes statements like that, he’s acting as an agent, so it could be used against Cohen. I think that you see lawyers get out, you know as we’ve said well in the earlier panel, that the day of letting the story come to you is over. You’ve got to get out and manage the story. And you need to do it very professionally, you know try to limit the facts, make it clear what the process is, and be accurate. And one of the most important things is, as the governor said, this is highlighted by the Virginia situation, is you got you have to master the facts immediately before you talk. You know because you’ve been putting out a palliative—that’s not going to help you. You need to be able to make a forceful statement that’s factual and will stand up under scrutiny. You can’t have a changing story or you’ll bury yourself.

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Suzanne Rich Folsom: …everybody has something of value that’s going to be exfiltrated, at some point, so legal needs to be involved.

Ty: I always tell clients that the first 48 hours are essential, because that is where 98% of the mistakes in case management happens. And Suzanne, I know from her compliance background has seen this, that you know there will be 20 conversations that don’t involve legal, all of which are subject to you know a lack of privilege, and people would have to testify about it. So, getting legal in immediately to preserve that privilege and to ensure that nobody screws anything up, and the documents are preserved and that a company acts honorably. Whatever has happened in the past, that they act honorably from that, you know, the first sign of an investigation forward.

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Ty: I mean you can’t really prepare for something like the Robert Kraft thing. You know, you need to go straight to well-trained people and hope they do their best work because it’s not something that you plan for but. But I know the teamwork is essential. You know people been trying to get this formula right for two decades. You know people move too fast sometimes, people move too slow. That’s why you have to have the red team drills figure that out, and facts rule. Facts rule. I mean so you know if you take the Jussie Smolett event. I mean you know, people who moved in too fast and were too judgmental you know obviously have some egg on their face. You know, it’s understandable. You know, it’s not a reason to crucify anybody, but you know, get your facts right and maybe waiting a day for the police to set things straight.

Doug: We’ll get to that on the next panel as well.

Ty: And the same thing on a “Me Too”, Les Moonves type thing. You know it’s something where people need to understand, even if you don’t have an answer, you’re taking it seriously.