Trump, Trump Jr., And The Attorney-Client Privilege
Donald Trump Jr. is claiming that some conversations between him and his father are covered by the attorney-client privilege. Based on what we know about those conversations, there's a good possibility that he's right.
Donald Trump Jr. appeared behind closed doors before the Senate Intelligence Committee in connection with its Russia investigation and reportedly invoked attorney-client privilege to decline to answer questions regarding his conversations with his father in the wake of his June 2016 meeting with a Russian lawyer who had been initially said to have compromising information about Hillary Clinton:
WASHINGTON — Donald Trump Jr. refused on Wednesday to provide a congressional committee details of a July telephone conversation with his father about a meeting last year at which Trump campaign officials had expected to receive damaging information from the Russian government about Hillary Clinton.
Testifying in a closed session before the House Intelligence Committee, Mr. Trump claimed that his conversation over the summer with his father, two days after The New York Times disclosed the June 2016 meeting at Trump Tower in Manhattan, was protected under attorney-client privilege because lawyers for both men were on the call.
What, if anything, Donald J. Trump knew about the Trump Tower meeting as a presidential candidate — and his role in drafting a misleading statement about it once he was president and it became public — are key questions for the special counsel, Robert S. Mueller III, who is investigating Russian interference in the election.
Donald Trump Jr. had agreed to the meeting after receiving an email stating that a Russian government lawyer would provide incriminating facts about Mrs. Clinton as “part of Russia and its government’s support for Mr. Trump.” He has said that no damaging information was delivered.
Representative Adam B. Schiff of California, the top ranking Democrat on the Intelligence Committee, said after Wednesday’s session that Donald Trump Jr. acknowledged that he had discussed the Trump Tower meeting by telephone with his father on July 10. The congressman said that Mr. Trump’s lawyer, Alan S. Futerfas, asked the committee for more time to answer questions about that conversation because both he and a lawyer for the president were privy to it.
Mr. Schiff said that he believed the contents of the phone call should not be kept secret simply because lawyers participated in it. “The presence of counsel does not make communications between father and son a privilege,” he said. He added that he would follow up with Mr. Futerfas about the legal basis for refusing to disclose what was discussed.
The conversations that Trump Jr. may have had with his father after the June 2016 meeting are of interest to investigators primarily due to the fact that the younger Trump went into this meeting on the presumption that the Russian lawyer he would be meeting with had connections to the Russian government and that the purpose of the meeting was to discuss potentially damaging information about Hillary Clinton. Prior to this, of course, we had learned about the now famous meeting in Trump Tower between Trump Jr., Paul Manafort, and Jared Kushner, and a lawyer with ties to the Russian government. During that meeting, the lawyer in question recently stated that Trump Jr. offered a quid pro quo in exchange for damaging information about Clinton. Initially, of course, the Trump White House and Trump Jr. claimed that the meeting was about the sanctions imposed by the so-called Magnisky Act and the issue of the adoption of Russian babies by American citizens, which was in limbo in wake of the sanctions imposed after Russia’s annexation of the Crimean region of Ukraine. In fact, as we learned later, the President himself participated in drafting a statement that made this claim on the way home from a trip to Europe on Air Force One. Very quickly, though, it became evident that these claims were untrue after Trump Jr. released a string of emails between himself and other campaign officials regarding the meeting. Those emails made it clear that purpose of the meeting was based on the claim that the Kremlin-linked lawyer could deliver damaging information about Hillary Clinton, a prospect that elicited a response from Trump Jr. that said: “Sounds great!”
Given all of this, the conversations that Trump Jr. may have had with his father both before and after this meeting are relevant to the Russia investigation because they go to the question of what Trump may have known about efforts by high-ranking officials in his campaign about contact with Russian officials and when he may have known it. In that regard, it’s worth remembering that immediately prior to this June 2016 meeting Trump Sr. had eluded in campaign speeches to damaging information about Clinton that was about to drop, and there were similar hints being made on Twitter by Roger Stone, who used to work on Trump’s campaign and still had a close relationship with him, about information about Clinton coming from Wikileaks and other sources. Was Trump eluding to the meeting in question? And, if so, what did he know about its purpose prior to the time it occurred and what actually happened at that meeting? Additionally, exactly what role did Trump play in drafting the statement that was initially released earlier this year that claimed, incorrectly, that the intent of the meeting had been to discuss the adoption of Russian orphans by American couples and the restrictions that had been placed on that program in the wake of the Russian takeover of Crimea?
The question of whether or not the attorney-client privilege applies to a given situation is often a complicated one, but it is also usually a question that courts end up deciding in favor of maintaining the privilege. As a general rule, of course, the privilege means that conversations between a client and his or her attorney are privileged and cannot be revealed in Court or in any other proceeding of a legal nature such as a Congressional investigation. Obviously, the privilege would not apply if Trump Jr. had a conversation with his father or with his father and other non-attorney parties. If none of the parties are attorneys then there is obviously no privilege. Additionally, a conversation that includes a party and his attorney along with a third party that the attorney does not represent would generally not be considered privileged. In this case, however, it appears from reports that Trump Jr. is claiming that the conversation that took place before the White House statement regarding the Trump Tower meeting that was released earlier this year was between the President and his attorney and Trump Jr. and his attorney. If this is the case, then I believe that a strong argument can be made that the privilege would remain in place because the argument could be made that the two parties, and their respective attorneys, were working pursuant to a common defense strategy and discussing matters that should be considered legally privileged. If, on the other hand, there were any non-represented parties present for all or part of this conversation then at least that portion of the conversation would not be protected by privilege and could not be revealed or compelled.
Ken White at Popehat has a “Lawsplainer” post discussing this matter in further detail, but it’s worth highlighting two of the points he makes:
[I]n general, the communication has to be confidential to be privileged. That means you have to intend that it be confidential and in fact keep it confidential. The presence of other people outside the attorney-client relationship prevents the privilege from attaching. That’s the core of the rule. That’s why people with entourages make very difficult clients.
But there are exceptions. Translators don’t destroy the privilege — they are there to empower the communication. Nor do other people who are there for the purposes of facilitating the communication. So if Don Jr. generally communicates in clicks and grunts and only Don Sr. can coax him into complete sentences, Don Sr.’s presence to help Don Jr. communicate with his lawyer doesn’t destroy the privilege. After that it gets cloudy. Having your spouse in the room may or may not destroy the privilege depending on the nature of the advice and the jurisdiction. Same with other family members — some courts find that the communication was still privileged because the family member agreed to keep the communication confidential and was there to facilitate the communication, some don’t. It’s a risk to have other people in the room, and many attorneys — like me — will send even a client’s spouse out of the room during key parts of a conference.
The same thing goes with lawyers. If someone else’s lawyer is in the room, that normally means that your communication with your lawyer isn’t privileged.
But . . . . there’s also a thing called the “joint defense privilege” or “common interest privilege.”
The question then is whether there is some kind of joint defense agreement between the Trump and Trump Jr. legal teams, and whether that agreement was in place at the time this particular conversation took place. If it was, then there would seem to be a strong argument in favor of finding that the privilege exists. Beyond that, as White also notes, there’s a question of whether or not anyone actually can invoke the privilege before Congress:
[I}t’s not clear what happens when you invoke the privilege before Congress. Congress is cagey about whether it recognizes the attorney-client privilege as applying to its inquiries. In typical Congressional fashion, it hasn’t made a clear rule, but sometimes Congress acts as if it does not recognize the privilege, and sometimes it acts as if it can use some sort of balancing test — the need for the information versus the interests of the witness — to decide if the privilege applies. And it’s not clear to what extent courts can review Congress’ refusal to recognize the attorney-client privilege. It’s kind of a mess.
In the end, this is a matter that would have to be resolved by the courts, assuming that either the committee or special counsel Mueller want to pursue the matter. The court would then be called upon to consider whether or not the conversation at issue fell within the boundaries of what is covered by the privilege and, if it does, then the content of those conversations could not be compelled. If the Court decides on the other hand that either all or part of the conversation was not privileged, then Trump Jr, would have to disclose the conversation or be held in contempt for failure to do so. In either case, it could be some time before the matter is resolved while the rest of the investigation moves forward.
Update: This post was updated to include the excerpts from Ken White’s post.