PR Lessons from the Trump White House: Uniting Lawyers and PR Pros
What sound does an attorney make when their client's PR spokesperson inadvertently sabotages their legal case?
Is it the slap of a hand whacking the lawyer’s forehead or more of a low moan of dismay, as a public relations professional accidentally makes an admission that could harm a client’s legal strategy? 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.” That was a stunning admission which Newsweek said, “effectively conceded for the first time that Trump had any involvement with Clifford.” White House sources blanched at this statement that contradicted Trump’s insistence he had nothing to do with Daniels, with 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 gave special counsel Robert Mueller a dream gift. Interviewed on ABC-TV, 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.” Cue the strangled “oh my God” screams of agonized White House lawyers, as 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 buzzsaw of federal legal prosecutions, seemingly without adequate preparation as to how their PR statements could have devastating legal consequences? For answers, the MaccaPR blog reached out to our friend Stacy Bettison, Esq., an attorney and PR advisor operating a litigation communications consulting firm in Minneapolis.
“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. “I’ve collaborated with many legal teams, and 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, 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.”
“When PR people are kept in the dark,” says Bettison, “we have no ability to influence the message strategically to help the client’s legal situation. Sanders probably did not know that what she said in that White House press conference could have legal consequences. Good chance the lawyers didn’t prepare her sufficiently – if they did at all.”
But there’s a fly in the White House ointment – 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 compromise vital issues of client-attorney privilege – which attorneys enjoy, but which neither Shaw nor Sanders could be guaranteed? Could the act of Trump’s lawyers revealing their legal strategy to PR spokespeople lead to counsel Robert Mueller demanding that Sanders and Shah answer questions under oath about what attorneys had told them?
“The case law on attorney client privilege – and its impact on non-attorneys receiving that legal strategy information – is a gray area,” grants Bettison. “In short, in certain situations an attorneys’ communication with PR is privileged, but at other times it may not be. 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.” (This is not, we’d add, a rhetorical situation – former White House communications director Hope Hicks has already been forced to testify before the House Intelligence Committee, and former legal team spokesperson Mark Corallo was interviewed last month by Mueller’s team about potential charges of obstruction of justice against other PR team members.)
So, what should White House PR 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. 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. ”
“Look, Sanders did the best she could in a very chaotic White House during a time when Trump’s own aides are trying to figure out where he’s going," insists Bettison. "Her challenge as press secretary is that there are several different legal objectives going on here with different potential defendants, not just Donald Trump’s legal interests – even Trump’s own attorney, William Cohen, may be subpoenaed to be deposed.”
Moving beyond the White House, what do PR people need to understand about the attorney’s mindset during litigation and how they view PR? “Considering that I’m both an attorney and a public relations counselor, I’m happy to speak to that. 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.”
It’s interesting to learn that President Trump’s attorney, William Cohen, is described on Wikipedia as “an American attorney who works as a lawyer and spokesperson for US President Donald Trump.” 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. A client may feel they want to defend themselves aggressively and want their lawyer to be their advocate because the legal piece is so important. But I advise that in many cases, you want to move quickly past the legal into the human and emotional, by having a CEO or other non-lawyer be your public face. As long as you have a lawyer on camera being your spokesperson, the public perception is: you have a serious legal issue going on.”
So Stacy, give us hope. What’s an example of when lawyers and PR professionals work together seamlessly? “I recently pitched a story to a journalist regarding a matter involving complex legal issues. 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. When there is good communication between lawyers and PR folks – and journalists – it can really work well for everyone.”
Bettison warns that once a reporter is invited to cover a legal case, they may open doors a client does not want opened. But she admits, “Whether your client is a plaintiff or defendant, you can draw some limits with a reporter and he or she may accept that; but if you don’t give the reporter what they want, they will get it elsewhere. You have to appreciate that the writer may go to places in the case where you did not want them to go. That’s the risk, and one to be carefully considered.”
As a PR agency that’s handled communications for several Twin Cities law firms – and partnered with attorneys on matters that intertwined legal with reputation interests – we had a final question to ask Bettison. I’ve always thought that the dreaded phrase “No Comment” were two words that attorneys were comfortable with and that PR people despised. 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 that you don’t yet know about, and we’re going to fight the truth every step of the way until we’re forced by a judge to reveal every heinous, soul-crushing misbehavior we’ve ever committed.”
But, Bettison disagrees about the love affair with the “No Comment” plea: “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.”
For advice on preparing your CEO to be an effective spokesperson, check out this MaccaPR blog post: “PR War Stories: Preparing Your CEO to Testify Before Congress”
Paul Maccabee is president at Minneapolis-based Maccabee, a strategic public relations and online marketing agency.