Legal Ethics

House committee lawyers are split on Trump Jr.'s privilege claim; what do experts say?

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Donald Trump Jr./

Lawyers for the House Intelligence Committee are split on whether Donald Trump Jr. used a valid assertion of attorney-client privilege when he declined to testify this week about a telephone conversation with his father regarding his 2016 meeting with a Russian lawyer.

U.S. Rep. Mike Conaway, R-Texas, who is leading that committee’s probe of Russian influence, tells Politico that the lawyers are split along partisan lines. “Anytime you have three lawyers, you’ll have four opinions,” he said.

Conaway said he was unsure of the process when committee lawyers disagree, but also said the issue would probably require input from the House general counsel.

Trump Jr. had been told in an email before the meeting with the Russian lawyer that he would receive damaging information about Hillary Clinton. Trump Jr. has said he ended the meeting after the Russian lawyer offered nothing of consequence and began to talk about a law halting the adoption of Russian children.

Outside legal experts are considering the validity of the assertion of attorney-client privilege regarding Trump Jr.’s discussion of the meeting with his father. Savannah Law School professor Andy Wright analyzes the issue in an article published by Just Security and Newsweek.

First, Wright says, Congress does not feel bound to honor attorney-client privilege because it is a common law evidentiary privilege. But if Congress does decide the privilege should be honored, there are questions about whether it applies.

Wright says there are four traditional elements of attorney-client privilege: a communication; made between privileged persons; in confidence; and for the purpose of seeking, obtaining or providing legal assistance to the client.

There was a communication, satisfying the first element, but there are “serious questions” about whether the other three were satisfied, he says.

If there is a joint defense agreement or a common interest privilege among the Trumps, information shared might be privileged, Wright says.

The lawyers on the call would make a difference. the president would enjoy attorney-client privilege with his personal lawyer, but probably not with a White House lawyer. Trump’s conversations with a White House lawyer might be covered by executive privilege, but that wouldn’t extend to a conversation with his son about nonofficial acts.

Another issue is whether the purpose of the call was to obtain legal advice or to craft a political response. There are many cases where courts rejected privilege claims about meetings attended by lawyers because they were for business matters rather than obtaining legal advice.

The presence of nonprivileged parties during the conversation could also destroy the privilege, TPM reports.

Vox contacted several experts about the privilege claim. “Attorneys are not magic sorcerers,” Loyola law professor Jessica Levinson said. “Merely having one in the room or on the phone does not automatically mean that anything that is said in that room or during that conversation is protected by the attorney-client privilege.” More information about the purpose of the conversation and people who were present is needed to answer the privilege question, she also said.

Stanford University law professor David Alan Sklansky made a similar point to Vox. “A lawyer isn’t a walking cone of silence,” he said.

Law professor David Schultz of the University of Minnesota, who spoke with the Wall Street Journal, believes the conversation was privileged. “I would tell be telling my students right now in my professional responsibility class that Congress can’t break privilege in this situation,” he said.

There would be an exception to the privilege, however, if either Trump or his son were conspiring to commit a crime, Schultz said.

Even if Congress doesn’t compel Trump Jr. to testify, the special counsel will likely be interested in the conversation, Wright told TPM.

“If you’re Bob Mueller and you get an interview of Donald Trump Jr., this is going to be one of the three or four main topics in your outline. Like at the Roman numeral level,” Wright said.

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