Did Trump Waive Executive Privilege over McGahn’s Congressional Testimony?

The House Judiciary Committee served former White House Counsel Don McGahn with a subpoena, available here, to produce several documents on May 7, 2019 and appear for sworn testimony on May 21, 2019. The topics primarily relate to McGahn’s knowledge and comments detailed in the Meuller Report’s obstruction-of-justice section. The HJC no doubt wants to explore McGahn’s presidential conversations in more detail.

The Washington Post reported that the White House would assert executive privilege to prevent McGahn’s testimony. According to the New York Times, HJC Chairman Jerrold Nadler said that this assertion would “represent one more act of obstruction by an administration desperate to prevent the public from talking about the president’s behavior.” The White House did not back down—yesterday, April 28, 2019, Counselor to the President Kellyanne Conway told CNN that asserting privilege over McGahn’s testimony was “always an option.”

But has the President already waived executive privilege such that the HJC has no boundaries when it questions McGahn (if it ever does)? Some law professors, as quoted in this Associated Press report, think so, but precedent from the Nixon, Clinton, and Bush43 administrations cautions against immediate conclusions.

McGahn Testified—Waiver?

McGahn provided 30 hours of testimony to investigators during the Mueller investigation, and the Mueller Report contains portions of that testimony. The President, as confirmed in this tweet, allowed McGahn to voluntarily appear for the interviews with no restrictions on his testimony.

Barr Confirms Non-Assertion of Executive Privilege—Waiver?

After General Barr sent Congress his Mueller Report summary, available here, but before releasing the Mueller Report, he gave a short press conference. Barr confirmed that More…

I, Being of Sound Mind, Hereby Bequeath My Privilege to …

Here is a privilege question you don’t see every day—can one bequeath her attorney–client privilege? We know that the privilege survives one’s death, see the Vince Foster case, so may a lawyer give his deceased client’s files—which contain privileged communications—to the estate’s personal representative?

A Colorado court said yes—a post-death property-transfer statute requires the transfer of a decedent’s property to the personal representative, including files—and, consequently, privileged information—held by the decedent’s lawyer. The court, however, refused to answer a significant follow-up question. In re Estate of Louis Rabin, 2018 WL 6801821 (Colo. Ct. App. Dec. 27, 2018). You may read the opinion here.

Marriage—Divorce—Marriage—Death

Lawyer Mark Freirich represented Lou Rabin in over 40 matters throughout the years. Lou, once married to Suyue, was married to Claudine when he died in 2017. Lou’s Last Will and Testament named Claudine as his personal representative in the estate’s administration.

As it turns out, lawyer Freirich had prepared a couple of promissory notes from Lou to Suyue that became due upon Lou’s death. Claudine, as the estate’s personal representative, subpoenaed Lou’s files from lawyer Freirich. Freirich refused, claiming that Lou was the privilege holder, the privilege survived Lou’s death, and he was duty-bound to prevent disclosure.

Privilege vs. Property Transfer

Colorado’s decedent’s estates law provides that, unless the Last Will & Testament provides otherwise (remember this phrase), the personal representative has a right to take possession of “the decedent’s property.” The Rabin court held that “property” includes files maintained by the decedent’s attorney, and that “a personal representative ‘has a right to’ client files held by an attorney for a decedent, except where a will provides otherwise.”

Colorado’s attorney–client privilege law and ethics rule 1.6 prevent Freirich from disclosing Lou’s privileged and confidential information, so how do you reconcile those obligations with the property-transfer law?

Reconciliation Ruling

No conflict, the court ruled, because the personal representative “effectively steps into the shoes of the decedent.” The representative becomes the client, and “the right to claim the attorney–client privilege passes to the personal representative, who becomes the holder of the privilege.”

Unanswered Question

Freirich’s concern—and all lawyers’ concern—is that if privileged communications transfer, then More…

Crisis, Indeed. No Privilege for BlackBerry CLO’s Crisis-Management Activities

Faced with a damaging market-analyst report and a plummeting stock price, BlackBerry’s CLO entered crisis-management mode. He directed a fact investigation into the report and worked with PR consultants to publish an immediate press-release rebuke.

But in a subsequent securities-fraud class action, a court rejected the CLO’s privilege claims over these activities. The ruling came despite the CLO’s declaration that his efforts were to advise BlackBerry about various “legal avenues.” Pearlstein v. BlackBerry Ltd., 2019 WL 1259382 (SDNY Mar. 19, 2019).

This opinion, available here, contains valuable lessons for corporate legal counsel and those seeking to pierce privilege claims related to crisis-management efforts. So, let’s explore it.

Illegal Data, Damaging Report, and a Press Release

Not long after BlackBerry launched its Z10 smartphone in 2013, Detwiler Fenton & Co. issued a market-research report on April 11, 2013, stating that customer returns of the Z10 phones were exceptionally high. Read the WSJ report, available here, for the key language.

As it turns out, Detwiler based its report on information received from James Dunham, the former COO of Wireless Zone, which operates several Verizon Wireless outlets. Dunham later pled guilty to wire fraud. You may read more about this story here.

BlackBerry’s stock immediately declined, and BlackBerry went into crisis-management mode. The CLO directed his in-house legal team More…