It can’t be fun to be a lawyer for the president these days.
One can only imagine the terrified sounds emitted by President Donald Trump’s attorneys when two White House PR spokespeople recently appeared to harpoon counsel’s strategies by blurting out admissions that were at odds with Trump’s legal interests.
First, White House press secretary Sarah Huckabee Sanders responded during a press conference to questions about the civil suit that porn star Stormy Daniels (aka Stephanie Clifford) filed against Trump by exulting, “arbitration was won in the president’s favor.” It was a stunning admission which Newsweek said, “effectively conceded for the first time that Trump had any involvement with Clifford.” Trump Administration sources admitting to CNN confidentially that “Sarah gave the Stormy Daniels storyline steroids yesterday.”
Then, less than a week later, deputy White House PR spokesperson Raj Shah said of allegations that the president’s staff and other intimates had colluded with Russia to win the 2016 election: “The president, who would be aware of any types of efforts, has been pretty clear, understands and knows that there is no collusion.”
With these words Shaw—in the words of the Washington Post—”had just ruled out the idea that someone else could have colluded with Russia without Trump’s knowledge. If we find out one day that someone within the campaign did collude, Shah’s remarks suggest that Trump had to have known about it.” Marveled a former federal prosecutor, “It was a really foolish thing to say – and one that they very likely will regret.”
Why are White House PR professionals walking pell-mell into the buzz saw of federal legal prosecutions, seemingly without adequate preparation? Stacy Bettison, Esq., an attorney and PR advisor operating a litigation communications consulting firm in Minneapolis, Minn. said it boiled down to a failure to communicate:
“On the face of it, you saw a lack of coordination that suggested not only that legal and PR were not communicating effectively (and possibly not at all), but that Sanders was in the dark about legal strategy, proceedings and the import of both,” says Bettison, a University of Minnesota Law School graduate who specializes in the intersection of law and corporate communications.
“It’s critical that legal keep PR updated on what is going to become publicly known. To serve clients best, lawyers need to keep PR in the loop, and PR needs to articulate exactly what they need from legal. Otherwise,” she says, “communications people are caught by something they don’t know about or aren’t prepared to answer for. PR and legal need to be in lockstep every step of the way.”
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However, navigating attorney-client privilege can be a tricky thing for PR pros looking for insider information on legal strategy. If Michael Cohen, Ty Cobb, Don McGahn or other Trump/White House defense lawyers had briefed Shaw and Sanders on their legal strategy, would those conversations be protected by attorney-client privilege—which attorneys enjoy, but which neither Shaw nor Sanders could be guaranteed?
“The case law on attorney client privilege—and its impact on non-attorneys receiving that legal strategy information—is a gray area,” grants Bettison. “If the communication between a client, attorney and the PR professional is reasonably necessary to assist the lawyer in representing the client and assisting in a legal strategy, there’s a greater chance it will be considered privileged by a judge; if the communications between client, attorney and the PR person are based on something non-legal, such as preserving reputation interests, then it may not be privileged and the PR professional could be compelled to testify.”
So, what should White House spokespeople have done before walking into the Washington Press Corp’s lion’s den and facing those pitiless microphones?
“If I were in Sanders’ shoes, I would first have asked Trump’s attorneys what their legal objectives were and give the lawyers a list of the 20 questions journalists would likely ask about the president’s legal issues,” says Bettison. “I’d want attorneys to advise me: what can I say and not say, what is not public and what is privileged? Sanders needed to vet her answers to anticipated media questions with lawyers in advance.”
Takeaways for PR pros
Moving beyond the White House, what do PR people need to understand about the attorney’s mindset during litigation and how they view PR?
“PR people must understand that attorneys have a legal obligation to protect their client based on the law. That is very different from the role of PR people, who are focused on protecting a client’s reputation in the court of public opinion. PR people must help attorneys understand why a message should be said a particular way and match it with the legal objectives.”
How wise is it for organizations to offer an attorney as their spokesperson with the media?
“That depends upon the situation,” says Bettison. “Providing a lawyer as the spokesperson for your client may give the impression you’re being defensive by sticking your lawyer out there to give the bare minimum legal responses.”
“Sometimes a client wants that.” However, Bettison warns, “As long as you have a lawyer on camera being your spokesperson, the public perception is: you have a serious legal issue going on.”
However, it’s not all bad news. Bettison says PR pros can collaborate effective with lawyers to create positive outcomes.
“I recently pitched a story to a journalist regarding a matter involving complex legal issues,” she says. “The attorney was supporting me every step of the way, to advise me on every statement we made concerning the case to that reporter. I always asked the attorney to review my messages so it didn’t compromise the legal case—and the reporter knew we had to run stuff by the lawyer. As a result, we were able to share information with the reporter, help him write a well-researched, balanced and informative article, all the while supporting the client’s legal objectives.”
Bettison warns that once a reporter is invited to cover a legal case, they may open doors a client does not want opened. “Whether your client is a plaintiff or defendant, you can draw some limits with a reporter and he or she may accept that,” she says, “but if you don’t give the reporter what they want, they will get it elsewhere.”
Is it better to stay silent?
To many in the public, the words “no comment” are perceived as being roughly equivalent to “Our company is totally guilty of everything we’re accused of and more.”
Bettison says it’s OK to respond. “In the 12 years I’ve been doing crisis communications focused on litigation, I’ve never had an attorney say we can’t comment at all. Lawyers recognize that companies have to be accountable to their stakeholders and that they can’t just put up a legal wall and refuse comment. Usually, attorneys can help PR people say something that protects a client’s reputation alongside the legal interests of their clients. You don’t need to give away your entire legal strategy to do it.”
Paul Maccabee is president at Minneapolis-based Maccabee, a strategic public relations and online marketing agency. A version of this article originally appeared on his blog.