A Review of Judge Kavanaugh’s Privilege Opinions

As the Senate confirmation hearings begin this week on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court, let’s review the nominee’s privilege opinions from his 12-year stint on the D.C. Circuit Court of Appeals.

By my count, Judge Kavanaugh authored 9 substantive, privilege-related opinions, each summarized below, including a few I discussed in prior PoP posts.  As you will see, Judge Kavanaugh is a strong proponent of the corporate attorney–client privilege, applies statutes’ “plain meaning,” upholds government agencies’ withholding of documents under the deliberative-process privilege, and avoids issuing advisory opinions.

Attorney–Client Privilege

In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014).  In an influential opinion for corporate internal investigations and the corporate attorney–client privilege, Judge Kavanaugh upheld the attorney–client privilege for internal investigations conducted at in-house counsel’s direction.  Judge Kavanaugh ruled that the privilege applied even where government regulations required the investigation, and non-attorneys conducted the employee interviews. And in a move that will please in-house counsel, the SCOTUS nominee rejected a narrow view of the primary-purpose test for communications pertaining to legal and business matters.

Noting “evident confusion” about the primary-purpose test and stating that the district court’s “but for” analysis was “not appropriate for attorney–client privilege analysis,” Judge Kavanaugh articulated this standard: “Was obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication?” In other words, Judge Kavanaugh rejected the sole-causation test in favor of a broader test that, “sensibly and properly applied, … boils down to whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.”  You may read the opinion, and my full analysis of it, at this blog post.

Federal Trade Comm’n v. Boehringer Ingelheim Pharmaceuticals, Inc., 892 F.3d 1264 (D.C. Cir. 2018).  In his last privilege opinion prior to his SCOTUS nomination, Judge Kavanaugh faced the issue of what privilege standard applied to a General Counsel’s communications that involved both legal and business advice.  Judge Kavanaugh, applying his Kellogg decision, eschewed a narrow, but-for standard, and ruled that the privilege covered a General Counsel’s communications involving legal and business issues because “one of the significant purposes of [her] communications was to obtain or provide legal advice,” with an emphasis on “one.”  You may read the opinion, and my earlier analysis, at this blog post.

South Carolina v. United States, No. 12–203, U.S. District Court for the District of Columbia, August 10, 2012.  In this case, Judge Kavanaugh sat on a three-judge panel at the D.C. District Court under §5(a) of the Voting Rights Act.  In South Carolina’s declaratory-judgment action that its voting-related statutory modifications are entitled to preclearance under the Voting Rights Act, the question arose whether the attorney–client privilege protected documents prepared by an attorney for the South Carolina legislature.  Two judges said no—narrowly applying the privilege and finding that the attorney’s work was policy-related, not legal related.

Judge Kavanaugh dissented.  More…

Two Trump Lawyers and a NYT Reporter Walk Into a Bar …. 1

Okay, it was a DC steakhouse, not a bar, and this is no joke.

Two of President Trump’s personal lawyers—Ty Cobb and John Dowd—ate lunch at BLT Steak on a recent Tuesday and discussed differing legal strategies for responding to Director Mueller’s Russian-related document requests.  They dined and debated with no knowledge that New York Times reporter Ken Vogel sat at an adjacent table secretly taking notes of the lawyers’ conversation.

Photo: @kenvogel Twitter

What does this episode mean for President Trump’s potential invocation of executive privilege?  What lessons can all lawyers derive from this inside-the-beltway faux pas?  Let’s discuss.

“Every Washington Reporter’s Dream”

In a recent NYT article, ‘Isn’t that the Trump Lawyer?’: A Reporter’s Accidental Scoop, Vogel provided a blow-by-blow account of his encounter with the two Trump lawyers.  He met a source at BLT Steak for lunch and, shortly after ordering, the restaurant seated Messrs. Dowd and Cobb at a table directly behind Vogel. More…

General Sessions and Executive Privilege

Over the last 24 hours, senators, reporters, and political pundits have generated lots of commentary over Attorney General Jeff Sessions’ refusal to reveal his communications with President Trump during testimony before the Senate Intelligence Committee.  Mr. Sessions cited, but did not invoke, the executive privilege as grounds for refusing to testify.

The Washington Post published this analysis quoting lawyers and law professors’ views on executive privilege.  In this online article, CNN reported on Mr. Sessions’ specific testimony and identified two 1982 DOJ memoranda from President Reagan’s administration as support.  The Wall Street Journal had this brief report on Mr. Sessions’ privilege assertion, and the L.A. Times, in this article, reported on Mr. Sessions’ exchanges with Senators Heinrich and King.

You may see Attorney General Sessions’ privilege assertion in response to Senator Heinrich’s questioning in this video clip from PBS NewsHour.

And you may see his explanation for refusing to reveal his communications with President Trump in this video clip from PBS NewsHour.

Mr. Sessions essentially stated that, although President Trump has not specifically invoked executive privilege, he was not at liberty to answer questions until the President had an opportunity to consider the question and then determine whether to invoke the privilege.

Commentators have raised several questions about the executive privilege’s application to Sessions’ testimony, stating that the requested testimony did not involve national security issues or pertain to an ongoing investigation.  And they question whether the Attorney General may refuse to answer questions when the President has not invoked the privilege.

So, let’s examine these issues from a legal, not political, perspective.

First, as explained in my recent post titled Trump, Comey, and Executive Privilege, the “executive privilege” is a broad phrase that encompasses various subcategories of privilege covering military secrets, grand-jury testimony, law-enforcement investigations, agencies’ deliberative processes, and presidential communications.

As with Director Comey’s testimony, Mr. Sessions’ potential testimony revealing his conversations with President Trump fall within the presidential communications privilege.  The presidential-communications privilege protects from disclosure communications that the President and/or his top advisors made in the performance of the President’s responsibilities.  The privilege is qualified and may be overcome upon a sufficient demonstration of need and that this evidence is not available from alternative sources.

Second, the President holds the presidential communications privilege and only he can waive it. Think of the attorney–client privilege analogy: the client, not the lawyer, holds the privilege and only the client can waive it.  If one asks a lawyer to reveal what her client said in a private meeting, the lawyer would state that she cannot answer unless her client authorizes disclosure.

Here, while Mr. Sessions does not hold the privilege and cannot officially invoke it, he cannot reveal his conversations with the President unless authorized to do so—meaning that the President has decided to waive the privilege.  According to Mr. Sessions, the President has not broadly invoked the presidential communications privilege regarding the testimony, but also has not considered the privilege with respect to the specific questions raised during the hearing.

Third, what is the process for procuring Mr. Sessions’ testimony now that he has refused to answer?  The Senate Intelligence Committee could (1) work with the Trump administration to determine whether he plans to invoke the privilege and, if not, bring Sessions back to answer the questions; or (2) challenge Sessions’ refusal to testify in court and seek a ruling on whether the privilege even applies.

As noted in my earlier post, and my Law360 article, the latter option presents a long, time-intensive process with no quick resolution.  Commentators who claim that a court will not uphold the privilege may be right, or they may be wrong.  The truth is that we will not know until the matter is actually litigated.