A Non-Political, Legal Analysis of Trump Jr.’s Privilege Claim 3

Donald Trump, Jr.’s attorney–client privilege assertion over discussions with President Trump—in the presence of lawyers—has generated significant commentary on television news shows, and in news articles and opinion columns.  Some claim the privilege assertion was “brazen” and “unequivocally” wrong, while others see merit in the privilege argument or take a wait-and-see approach.

This is political—not legal—theater.

Many have expressed an interest in my analysis. So, here it is—my objective, non-political, legal analysis of the Trump Jr.’s privilege claim based on what we know. Those seeking blind support of the privilege assertion or a conclusory, hyperbolic denouncement should look elsewhere.

Backdrop

In a series of articles, the New York Times reported that Trump, Jr. met with Natalia Veselnitskaya, a Russian lawyer, on June 9, 2016 after receiving promises the meeting would produce damaging information on Hillary Clinton.

Trump, Jr. first said the meeting pertained to adoption of Russian children.  He later acknowledged that Veselnitskaya offered Clinton-related information, and then posted emails related to the meeting.  Trump, Jr. claims that he never advised President Trump about the June 9, 2016 meeting during the campaign, but the two held a discussion–with lawyers present–after Trump, Jr. released the emails in July 2017.

Hours of Testimony                                 

On December 6, 2017, Trump, Jr. provided several hours of non-public testimony to the House Intelligence Committee regarding a variety of issues related to Russia’s influence on the 2016 presidential election.  At the testimony’s conclusion, Rep. Adam Schiff (D–Cal.), the committee’s Ranking Member, immediately addressed the press, which you may watch here.

Schiff relayed that Trump, Jr. answered the “overwhelming majority” of questions, but there was one “significant area” in which Trump, Jr. refused to provide information.  Trump, Jr., citing the attorney–client privilege, refused to answer questions about his post-email discussion with President Trump, with lawyers present, about the June 9, 2016 meeting.

Reaction

Schiff then opined that the attorney–client privilege does not protect father–son discussions.  When asked to identify the attorney and the client in the purported attorney–client relationship, Schiff demurred, simply repeating that “the presence of counsel does not mean that communications between father and son are privileged.”

Media pundits jumped on Schiff’s statements.  The Washington Post labeled Trump’s privilege claim as “brazen”; Rep. Pramila Jayapal (D–Wa.) called the privilege assertion “absurd and duplicitous”; Common Dreams concluded the privilege claim was “bogus”; and one law professor opined that the privilege is “unequivocally” inapplicable here.

White House Press Secretary Sarah Huckabee Sanders, on the other hand, said that Trump, Jr. had a “legitimate reason” to assert the privilege (see short video clip below).

Rep. Mike Conaway (R–Tex.) conveyed that some lawyers’ opined it was a “good privilege.”  Another law professor stated that the privilege could apply in this situation.

Analysis

Let’s dispense with the immediate, superficial reaction from those claiming the privilege assertion is frivolous and those stating the privilege applies.  The conclusion at this point is that there is no conclusion—we simply do not have enough evidence to reach an informed opinion.

Three privilege-related doctrines may apply to the Trump–Trump, Jr. discussion about the June 9, 2016 meeting, so let’s review them.

Attorney–Client Privilege

Rep. Schiff is correct that the mere presence of a lawyer does not render a conversation privileged.  And while his statement that the privilege does not protect father–son conversations is true in a vacuum, it misses the point.  Unless waived, the privilege protects confidential communications between a client and her lawyer made for purposes of the lawyer rendering legal advice.

If Trump and Trump, Jr. held a confidential meeting with their personal lawyers to obtain legal advice related to Trump, Jr.’s meeting with the Russian operative, then the privilege likely protects the discussion from disclosure.  If the father–son duo, as campaign representatives, met with the campaign’s lawyers to discuss the Russian meeting, then the privilege likely applies.

But if Trump, Jr. met with his personal lawyer and invited his father—a third-party in this situation—then the privilege likely does not apply.  Nor would it apply if the lawyer was present for some reason other than participating in the conversation to provide legal advice.

Joint–Client Doctrine

Where one lawyer (or law firm) represents two or more clients jointly, the joint–client doctrine protects from disclosure the clients’ privileged conversations with their common attorney(s).  If the lawyers present for the Trump–Trump, Jr. meeting represented both jointly, and participated in the confidential meeting to provide legal advice, then the joint–client doctrine applies and the privilege assertion is likely valid.

Common–Interest Doctrine

The common–interest doctrine allows two clients—represented by separate lawyers—to share privileged communications without waiving the privilege.  As the name implies, the shared communications must further a common legal interest.  So, if the Trump–Trump, Jr. meeting included President Trump’s personal lawyer and Trump, Jr.’s separate personal lawyer, and they were pursuing a common legal interest (say, defending against a law-enforcement action), then the privilege likely protects those discussions from disclosure.

Insufficient Information

There are several “ifs” in the analysis of these three legal applications, and that’s the point. I hope that the House Intelligence Committee members asked specific questions designed to ascertain the basis for the lawyers’ presence in the Trump–Trump, Jr. meeting.

How many lawyers were present? Whom did they represent?  Is there an engagement letter and, if so, how does it define the scope of the lawyers’ representation? Did Trump and Trump, Jr.’s lawyers sign a common-interest agreement? How confidential was the meeting? Were notes taken and disclosed to third-parties? What was the meeting’s purpose?

Answers to these questions will provide us the necessary information to evaluate the privilege claim.

What Happens Next?

Rep. Schiff said that Trump, Jr.’s lawyers would further evaluate the privilege assertion and inform the Committee whether they remained firm in their legal position.  Perhaps these lawyers will evaluate the three legal doctrines above, conclude the privilege does not apply, and allow Trump, Jr. to testify about the discussion with his father.

But if Trump, Jr.’s lawyers stand on the privilege assertion, then the Committee must decide whether to issue a subpoena to Trump, Jr., force him to formally invoke the privilege, and ultimately seek a resolution in court.  If this matter goes to court, Trump, Jr. will have the burden of proving that the privilege applies, likely through declarations from him and his lawyers.

And that would be good legal—and political—theater.

3 comments

  1. Thanks for this great analysis. However, I’m not sure I understand this point under the “Attorney-Client Privilege” subheading: “If Trump and Trump, Jr. held a confidential meeting with their personal lawyers to obtain legal advice related to Trump, Jr.’s meeting with the Russian operative, then the privilege likely protects the discussion from disclosure.” Are you assuming Sr. and Jr. are separately represented with both lawyers at the meeting in this scenario? Isn’t the analysis here the same as with the common interest doctrine? If their interests are aligned, then the common interest doctrine might apply. However, if their interests diverge, then isn’t this a non-privileged communication because third parties are present?

    Separately, does the common interest doctrine require a formal common interest agreement (written or oral), or can it operate with or without an explicit agreement?

    Liked by 1 person

    • Thanks for the comment and question. In the “Attorney-Client Privilege” subheading, I set forth the elements necessary to secure privilege protection over the conversation–communication, confidentiality, and legal advice. Yes, I was assuming both had lawyers at this meeting for purposes of explaining the privilege’s elements. Without first proving the merits of the underlying privilege, there is no need to examine whether the common-interest doctrine applies. So, I addressed the privilege elements first and then the common-interest and joint-client doctrines.

      If Trump and Trump, Jr. engaged in the conversation to further a common legal interest, then there is no privilege waiver. If their legal interests either were never common, or were common then diverged upon learning new information, then either or both waived the privilege by holding the conversation in the presence of third parties.

      As to your second question, federal and state courts apply the common-interest doctrine inconsistently. In the cases I’ve reviewed, courts require either an express or implicit agreement to share information in furtherance of a common legal interest. Courts do not necessarily require the parties to memorialize their agreement, but they should produce some evidence of an agreement.

      Hope this helps.

      Liked by 1 person

Comments are closed.