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…

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…