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.