At 12:14 p.m. on December 2, 2017, a tweet was published from Donald Trump’s Twitter account which stated, in part, that he had fired General Flynn because he lied to the Vice President and the FBI. The inclusion of the allegation that lying to the FBI was part of the reason for firing General Flynn was a new disclosure and it almost immediately provoked questions that if Trump knew this when he fired Flynn why was he just now disclosing it. In other words, it was incriminating. Shortly thereafter John Dowd, one of Trump’s lawyers, stated publicly that he had drafted the tweet and had done so sloppily. In an interview with Axios this morning, Dowd said the tweet was his mistake and he was “out of the tweeting business.”
Later Dowd told NBC News that he drafted the tweet and then sent it to White House Social Media Director Dan Scavino to publish. When asked for the original email he sent to Scavino, Dowd said he dictated it orally. When asked how frequently he did that he said. “Just this once”.
When I saw the first Dowd disclosure on Facebook, I commented that Dowd had just waived the attorney-client privilege. At the time I made some assumptions that I still think may be correct, Mr. Dowd’s assertions to the contrary notwithstanding. However, even if my assumptions are correct, the situation is more complex than my original comment, and if Dowd’s statement is completely true, they may be even more complex.
In the interest of full disclosure I have some history with Mr. Dowd. In late 1983 I conducted an internal investigation for a client which resulted in the expulsion of a person who was a subject of a federal criminal investigation. Mr. Dowd represented that person. It was a brief but turbulent interaction. Nothing that Mr. Dowd does or says surprises me.
My assumption was that after Flynn’s guilty plea, Dowd rather impulsively drafted the tweet in question and advised Trump to publish it, which Trump did. Then the internet lit up with remarks that Trump had just incriminated himself. My next assumption is that Trump started raising hell with Dowd, who agreed to take responsibility by publicly stating that he had drafted the tweet, and Dowd promptly did so.
With Dowd’s claim that he drafted and published the tweet, the attorney-client privilege would not be implicated, if he did not get Trump’s consent to make the public assumption of responsibility, since it would not be a disclosure of an attorney-client communication. Dowd has not specifically denied that Trump knew of the drafting and publication of the tweet.
I suspect that Dowd will soon get a subpoena from Mueller. So will Scavino. Dowd will also certainly be asked why he made the statement that lying to the FBI was one of the reasons for firing Flynn. If my assumption is correct that Dowd is trying to cover for advising Trump to publish a tweet that was true but incriminating, Dowd’s appearance before the Grand Jury may be his most difficult appearance in his long career. Honest answers to the questions may incriminate him on several theories or, depending on the answers, might incriminate his client.