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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: attorney-client privilege

Giuliani helps build the case that his client may be a Russian asset (and maybe helps restore Buzzfeed’s credibility)

21 Monday Jan 2019

Posted by impeachableoffenses in Uncategorized

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attorney-client privilege, buzzfeed, Giuliani, Michael Cohen, Robert Mueller, rudolph giuliani, Trump Tower Moscow, waiver of attorney-client privilege

By Frank Bowman

Somewhat lost in the coverage of Mr. Trump’s apparently unsuccessful effort to end the government shutdown standoff comes the quite remarkable story of Rudy Giuliani’s interview with the New York Times in which Giuliani:

  • admitted that conversations about building a Trump Tower in Moscow continued throughout the 2016 campaign up until the November election;
  • quoted Mr. Trump as saying of the Moscow project, “It was all going from the day I announced to the day I won”;
  • claimed that the whole project was run by Cohen with little input by Trump, quoting Trump as saying, “We talked about it, I knew [Cohen] was running with it, I honestly didn’t pay much attention to it”;
  • “acknowledged that Mr. Trump might have talked to Mr. Cohen before his congressional testimony [in which Cohen falsely claimed that the Trump Tower Moscow negotiations ended in January 2016], but … said his client had never instructed Mr. Cohen to lie.”

From a lawyer’s perspective, perhaps the most amazing part of this interview is the fact that Giuliani just created evidence against his own client, admissible in any court and certainly in the more procedurally relaxed setting of a congressional investigative hearing or an impeachment proceeding.

Non-lawyers probably think that whatever Giuliani says to the press presents no risk to Trump because of the attorney-client privilege. But that’s quite wrong. Attorney-client privilege covers only statements made by the client to the lawyer in confidence for the purpose of obtaining legal advice. What a client said to his lawyer is privileged as long as both lawyer and client keep it secret. Once either of them discloses a client statement, it is no longer privileged. Indeed, even unauthorized or inadvertent lawyer disclosures of client statements sometimes waive the privilege.

Certainly once the lawyer assumes the role of public spokesman for the client and makes public assertions of fact in that role, the lawyer becomes a “speaking agent” of the client and the lawyer’s statements are admissible against the client. Federal Rules of Evidence 801(d)(2)C). This basic rule doesn’t change where the fact publicly asserted by the lawyer is the content of what his client said in an otherwise-private conversation.

Hence, Giuliani just became a witness to the duration of the Trump Tower Moscow project and to Trump’s knowledge of that duration. He may also have become a witness to what Trump told him about any conversation with Michael Cohen before Cohen’s congressional testimony.

Why it could matter

It has been reported that, right up to election night, Trump did not expect (or maybe even want) to win the election. He admits that he was keeping his options open. As he put it, “There was a good chance that I wouldn’t have won [the election], in which case I would have gone back into the business. And why should I lose lots of opportunities?” But both during and after the campaign he repeatedly insisted that he had no deals in Russia. In January 2017, after his election, he explicitly stated that, “I have no dealings with Russia, I have no deals in Russia, I have no deals that could happen in Russia because we stayed away.”

Of course, as we now know, he and the Trump Organization had not “stayed away” from Russia. Far from it. Nonetheless, once the existence of Moscow tower negotiations became public, Trump minimized his interest and the duration of negotiations. As recently as two months ago, in a statement on the South Lawn of the White House, he claimed that they did not continue past “the early part of ’16.” Placing that end date on the project allowed him to dismiss any connection between his financial self-interest in 2016 and his otherwise odd chummy attitude to Putin and promotion of pro-Russian policy throughout the election season. 

Michael Cohen tried to back Trump’s story by telling Congress that the Trump Tower Moscow project ended in January 2016. Cohen has admitted this was a lie and that the project was pursued  actively through at least June 2016. But Giuliani has now established that the project continued still longer. More importantly, he has provided independent proof that Trump knew about its duration and repeatedly lied about it. Proof of Trump’s knowledge no longer depends on Michael Cohen’s unsupported assertions or even on inferences from whatever Trump Organization documents Mueller may have. Instead, it can be established by Giuliani’s testimony about what Trump himself admitted.

Proof of the duration of the Moscow project and Trump’s knowledge of it matters because it solidifies at least one incentive for Trump’s peculiar affinity for Russia during the campaign. More importantly, it proves beyond any shadow of a doubt that, after the election, the Kremlin had leverage on Trump.

Once Trump won, the Kremlin knew that Trump had been actively trying to do a deal in Moscow, while simultaneously and repeatedly publicly denying it. That gave Putin leverage. He could expose the new president as a liar who had been trying to curry financial favor with a traditional enemy state. There are multiple other Russian pressure points that remain unproven – mostly the possibility of ongoing financial relations with Putin-backed Russian oligarchs – but here we have a concrete indisputable fact, corroborated by both Trump’s former and current attorney.

And this concrete indisputable fact lends credence to the still-astonishing possibility that the President of the United States is compromised by a hostile foreign power.

Giuliani’s Times interview does one other thing — it may help rehabilitate, at least somewhat, the BuzzFeed report that Trump told Cohen to lie before Congress. Giuliani denies that Trump told Cohen to lie, but concedes that Trump “might have” talked to Cohen before Cohen’s congressional testimony. That statement has two effects.

From a common sense perspective, Giuliani’s “might have” is as good as an admission that such a conversation occurred. Admission of its occurrence would help Cohen’s credibility immensely if he were to claim that Trump made damaging statements. After all, the mere occurrence of such a conversation — the President having a private talk with a potential witness against him –would be breathtakingly inappropriate. One obvious purpose of such a conversation would be to influence the upcoming testimony. Although speculation is dangerous, Giuliani’s de facto admission suggests that Robert Mueller’s repudiation of BuzzFeed‘s reporting may stem from the wording of the Buzzfeed story, rather than its essence. For example, Cohen may be prepared to say, not that Trump unequivocally told him to lie, but that Trump hinted at how he would prefer the testimony to run. Likewise, Mueller may have objected to the language of the BuzzFeed story insofar as it over-promised, suggesting that the special prosecutor had documentary corroboration of an express presidential direction to commit perjury.

From a legal point of view, Giuliani’s choice to discuss with the press what his client said about the occurrence of a Trump-Cohen conversation and its contents may constitute a waiver of attorney-client privilege on that topic. It certainly provides a legitimate basis upon which a grand jury or a congressional committee could subpoena Mr. Giuliani and seek to compel his testimony about what the President told him about any pre-testimony talk with Cohen.

Things grow curiouser and curiouser.

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Donald Trump, Jr. & the Attorney-Client Privilege

07 Thursday Dec 2017

Posted by impeachableoffenses in Uncategorized

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Adam Schiff, attorney-client privilege, Donald Trump Jr., Trump Tower meeting

Donald Trump, Jr. was questioned at length on December 6, 2017 by the House Intelligence Committee concerning, among other things, his June 2016 meeting at Trump Tower with Russians offering dirt on Hillary Clinton.  He was also questioned about his discussions thereafter with his father concerning that meeting.  Donald Jr. refused to answer, claiming attorney-client privilege.  Congressman Adam Schiff (D-Calif.) expressed incredulity at this claim inasmuch as neither Trump Sr. or Jr. is a lawyer.  Donald Jr. responded by claiming that the privilege arose because there was a lawyer present.

NOTE: I wrote the following earlier today (12/7/2017) based on the understanding that there was only one lawyer present.  I see that it is now reported that lawyers representing both Donald Sr. and Donald Jr. were present.  If so, that changes the analysis significantly, even though it remains unclear whether a valid claim of privilege exists.  A solid analysis by Andy Wright of the problems presented by the two-lawyer scenario appears today on Slate and Just Security.

The most famous definition of the attorney-client privilege was provided by Dean J.H. Wigmore:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser
in his capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal adviser, (8) except the protection be waived.

Broadly speaking, the privilege applies to communications from a client to a lawyer in a situation where the client is seeking legal advice from the lawyer.  In order to be privileged, a communication must be confidential – meaning that it cannot be made in the presence of a third party, that is, someone who is not a client or employed by the lawyer to assist in representing the client.

In the Trump situation, the only way the attorney-client privilege could apply is if the lawyer was, at the time of the conversation, retained by both Trump Sr. and Trump Jr. to represent them.  It is possible, though profoundly inadvisable, for lawyers to represent two clients.  This is particularly true when the interests of the two parties may diverge.  If, for example, Donald Jr. did some things in the Trump Tower meeting that would subject him, but not his father, to legal liability, no sensible lawyer would agree to represent or advise both.  It seems quite unlikely that whatever lawyer was present in the conversation or conversations at issue here represented both Trumps.

If that was the case, then the whole conversation is outside the attorney-client privilege.  If the lawyer represented Trump Sr. only, anything Trump Sr. said would not have been said in confidence.  So no privilege would apply to Trump Sr.’s statements, or for that matter to anything said by anyone else present.  If the lawyer represented Trump Jr. only, the same would be true.  Anything Trump Jr. said would not have been said in confidence, so no privilege would apply to his statements or those of anyone else present.

The remarkable thing about the exchange between Rep. Schiff and Donald Jr. (at least as reported) is that  no one, including Schiff, seems to have had the legal knowledge or the fortitude to press the point.  It’s not surprising that a congressman in the midst of interrogating a witness, even one like Schiff who is a lawyer, would fail to recall all the details of the attorney-client privilege.  But Schiff was not the only lawyer-congressman in the room.  And congressmen have staff whose job it is to prepare for obvious turns of events like a witness claim of privilege.

Before he was allowed to leave the hearing, Donald Jr. should have been asked about the identity of the lawyer and the nature of the relationship between that lawyer and the Trumps.  The existence of an attorney-client relationship and its subject matter is not itself privileged.

If, as I strongly suspect, the facts would not support the existence of attorney-client privilege, the committee chair should have insisted that the question be answered.  A refusal should have produced a move for immediate sanctions against Donald Jr. It is possible, of course, that follow-up inquiries along these lines have been initiated by Schiff or someone else.

If not, letting this lie will be a clear signal of lack of seriousness by Republicans and Democrats alike.

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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