Trump's personal lawyer and the White House counsel are reportedly clashing over the Russia probe

Hogan Lovells

Ty Cobb

President Donald Trump's legal team and the White House counsel are butting heads as special counsel Robert Mueller's investigation into whether the Trump campaign colluded with Russia during the election heats up.

In particular, Ty Cobb, the white collar criminal defense attorney spearheading Trump's outside legal team, is at odds with White House counsel Don McGahn over how much to cooperate with Mueller's probe, The New York Times reported on Sunday.

A Times reporter was at the same restaurant as Cobb when he overheard the attorney discussing the conflict with another person. During the conversation, Cobb reportedly called another White House lawyer a "McGahn spy" and said McGahn had "a couple of documents locked in a safe" that it appeared Cobb wanted access to.

Cobb supports turning over as many documents as possible to Mueller to speed up the investigation, which he believes Trump will emerge unscathed from, according to the Times. McGahn, on the other hand, supports cooperating in the investigation but wants to tread with more caution out of concern that Trump could assert executive privilege over his conversations with the White House counsel.

Mueller's team wants to interview McGahn and a handful of other White House staffers, but before fully cooperating with investigators, McGahn reportedly wants Cobb to tell him whether Trump is planning on exerting executive or attorney-client privilege over their communications, so he can establish which details he can divulge and which he cannot.

The substance of what McGahn told Trump is important - and there's no guarantee that it could be withheld as privileged information.

The reason is that a federal court of appeals ruled in 1998, at the height of the Monica Lewinsky scandal, that deputy White House counsel Bruce Lindsey had to submit to the special prosecutor's questions about President Bill Clinton's relationship with Lewinsky. In that case, the court held that there is no attorney-client privilege between a government lawyer and a government employee in response to a grand jury inquiry.

If that ruling holds as it relates to the obstruction of justice investigation Mueller is reportedly building against Trump, it's possible the public will eventually hear what McGahn told the president.

"If he said anything along the lines of, 'There's potential criminal liability if you shut down this investigation,' that would be extraordinarily powerful evidence against Trump," former federal prosecutor Renato Mariotti said.

At the Washington, DC restaurant, Cobb also blamed another colleague for "some of those earlier leaks" and for trying to oust Jared Kushner, Trump's senior adviser and son-in-law. Kushner is also a subject in the Russia investigation, and Trump's lawyers mulled over the possibility of urging him to leave the White House earlier this year amid concerns over his Russia ties.

After the Times contacted the White House over Cobb's conversation, McGahn reportedly "erupted" at Trump's lawyer, and chief of staff John Kelly criticized Cobb for his indiscretion, according to people familiar with the matter.

This is not the first time Cobb has invited scrutiny in recent weeks.

After Business Insider reached out to Cobb asking follow up questions after he criticized an earlier article about Mueller's obstruction of justice investigation, he asked the reporter if she was "on drugs."

In a later exchange with amateur Russia sleuth Jeff Jetton, Cobb defended his decision to join Trump's legal team and appeared to refer to himself and White House chief of staff John Kelly as the "adults in the room."

Cobb also mentioned the Russia investigation - which he called "bulls---" that "is totally political limiting Russian cooperation against" North Korea - and said he "walked away from $4 million annually" to join Trump's legal team.

The next day, Business Insider reported that Cobb engaged in a lengthy email exchange with a prankster posing as White House social media director Dan Scavino, during which Cobb asked whether there was "any drone time left" when discussing a Business Insider reporter he described as "insane."

Cobb did not respond to a request for comment on this story.