Caveat: This post won’t address recent debates over the nature of White privilege or Male privilege. It’s focused instead upon two longstanding legal doctrines: Executive Privilege and Attorney-Client Privilege, both of which are currently relevant to the prospects of the Trump administration.
I am indebted for this discussion to my colleague (and former co-author) David Schultz, who teaches both law and public policy at Hamline University and the University of Minnesota Law School. David recently used his blog to address those issues. As he introduces the topic,
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 walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.
The way in which Executive Privilege is most likely to be asserted would be an effort by Trump to quash subpoenas issued by the Special Prosecutor. The Supreme Court considered a similar claim in U.S. v. Nixon, and that precedent isn’t helpful to Trump. (The Nixon case raised the issue whether a president had to comply with subpoenas from a special prosecutor; at that time, the object was the infamous tapes.)
Nixon asserted executive privilege, which he claimed was absolute. The Court rejected the claim, ruling that the Privilege “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.”
Of course, it is the attorney-client privilege that Trump and his supporters insist was violated in the raids on Cohen’s office, home and hotel room. However, as David writes,
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,449 U.S. 383 (1981), 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.
A well-known exception to attorney/client privilege is the crime-fraud exception. Communications between lawyers who collude with their clients to break the law are not protected. In this case, the government evidently gave the court evidence sufficient to support an allegation that the crime-fraud exception applied. (There was also evidence that Cohen rarely acted as a lawyer–that he did little or no legal work, but was actually a “fixer” and business partner for Trump and occasionally others.) The mere fact that a business partner –or a partner in crime–has a law degree isn’t enough to privilege the communications.
As David concludes,
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, 520 U.S. 681 (1997). 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 gave the presidency was a temporary immunity or privilege against civil lawsuits. The Court against 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 now–Trump and his attorney are confronting this reality, and the law will win.
It can’t happen soon enough….