Trump, Cohen, and the Limits of Privilege
The limits of two privileges–executive and attorney/client–may determine the fate and future of the Trump presidency. But if Donald Trump and his attorney, Michael Cohen, think that they can stand on the absolute nature of these two privileges as final fire wires that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.
Executive privilege is what Donald Trump as president may try to invoke if he seeks to squash subpoenas issued by the special prosecutor in the criminal investigation into Russian collusion or other alleged illegal activities. Executive privilege is grounded in the concept of separation of powers–found especially in Article II, section 2 of the Constitution. The concept of executive recognizes that some conversations of the executive (which includes the president) are insulated from scrutiny by other branches. There may be times when the president needs confidentiality to have candid high-level conversations, tossing about ideas or policy options, for example. Yet this privilege is not absolute, as the Supreme Court said in United States v. Nixon.
In Nixon’s case what was at issue was whether the president had to comply with subpoenas from a special prosecutor seeking tapes of White House conversations that could possibly be evidence in a criminal matter. Nixon asserted that executive privilege is absolute, the Court rejected that claim. It declared: “[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”
More specifically, when weighing executive privilege against the needs of the fair administration of justice, the Court declared: “We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”
Any generalized assertions that Trump or the White House may make on claims of executive privilege to impede a criminal investigation would be rejected under Nixon. Whether such action would then rise to the level of obstruction of justice is a different question. But at the least Trump would lose here.
Similarly, Trump and the White House might seek to invoke attorney/client privilege as a means of protecting some conversations he had either with White House Counsel or his personal attorney, Michael Cohen. Attorney/client privilege protects communication made between privileged persons in confidence for the purposes of obtaining or providing legal assistance for the client. As the Court said in cases such as Upjohn v. United States, this privilege encourages clients to talk frankly with their attorneys, allowing the latter to obtain the information needed to provide appropriate legal advice. Clients would be hesitant to seek legal advice if they generally knew their conversations would not be confidential.
Generally, attorney/client privilege is absolute–no showing nor hardship can overcome it. The government cannot say that “We know you said incriminating things to your lawyer and we want to know what it was you said.” The very purpose of the privilege is to protect individuals seeking legal advice from having their conversations exposed. Yet there are limits to this apparent absoluteness of attorney-client privilege.
First, in the Grand Jury Subpoena Duces Tecum 112 F. 3d 910 (8th Cir. 1997), then President Clinton sought to invoke both executive and attorney/client privilege to prevent a special prosecutor from securing notes and documents regarding White House conversations with counsel. These conversations related to the special prosecutor’s investigation of the Clintons’ dealings with Whitewater Development Corporation when he was governor of Arkansas. Eventually because of Nixon, Clinton dropped the executive privilege claim, but the Court ruled against him on the attorney/client claim. It did so by arguing that the use of this privilege by the White House undermined values such as transparency and the promotion of justice that the government should pursue. Thus, attorney-client privilege will not protect the president acting in the White House nor in his presidential capacity.
But there is another exception to attorney/client privilege applicable to Trump as a private person and to his attorney Michael Cohen. It is the crime-fraud exception. The crime-fraud rule is premised on the notion that lawyers should not be using their legal skills to commit crimes or help their clients break the law. Such action would be aiding and abetting, for example. If clients are suspected of using their lawyers to break the law (or attorneys are themselves suspected of the same), attorney-client privileged may be cracked. How so?
In United States v. Zolin the Supreme Court articulated a test outlining when and how attorney/client privilege may be challenged. That test is best described in United States v. Chen.
First the government must satisfy the judge that there is “a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies,” and then if the judge decides this question in favor of the government, the otherwise privileged material may be submitted for in camera examination.
Under the Zolin-Chen test, a judge must be persuaded that a preliminary showing has been made that indicates that examination of attorney/client conversations will indicate a crime has been committed. In the case of the Michael Cohen, a prosecutor probably made that showing to a judge, resulting in the issuance of a search warrant to secure his records, including those with Trump. The next step is a separate hearing for a judge to examine the materials to decide if the crime-fraud exception applies. This hearing that will occur seems to have perplexed the media. If the judge is convinced that the exception applies, then it may be used against Cohen or Trump.
Finally, there is another privilege that Trump may invoke–the right of a president not to be burdened by civil law suits in office because actions such as Clinton v. Jones. Here President Clinton was facing a sexual harassment suit by Paula Jones arising out of his actions as governor of Arkansas. He argued that the civil case against him should not proceed because it would impede his duties as president. In effect, separation of powers given the presidency was a temporary immunity or privilege against civil lawsuits. The Court rejected this claim, asserting that the presidency did not provide the type of immunity Clinton asserted.
Collectively, Nixon, Zolin, and Jones stand for the proposition that presidents are not above the law. They cannot invoke executive or attorney-client privilege to hide from criminal or civil liability. These privileges are not absolute and at some point–which appears to be now–Trump and his attorney are confronting this reality, and the law will win.
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