On Friday, May 18, 2018, The New York Times and the Washington Post reported that, beginning in July 2016, an FBI informant contacted and met with Trump Campaign officials in a clandestine effort to obtain information about the Campaign’s dealings with Russian operatives. The news reports state that an American professor teaching in Britain met with George Papadopoulos, a foreign-policy advisor to the Trump Campaign and, later, with Carter Page, an advisor, and Trump Campaign co-chairman Sam Clovis.
Demands for informant’s information immediately arose. Representative Devin Nunes, Chair of the House Intelligence Committee, has subpoenaed the informant’s information and threatened to hold Attorney General Jeff Sessions in contempt if the DOJ does not comply. White House Chief of Staff John Kelly similarly requested that the DOJ supply information about the informant and his activities. And, in an interview published today in The Wall Street Journal, Trump lawyer Rudy Giuliani said that the president needs the informant’s information before he will consider sitting for an interview with Special Counsel Mueller.
And earlier today, President Trump demanded via Twitter that the DOJ look into the FBI’s alleged “infiltration” into the Trump Campaign.
Citing national-security concerns and potential danger to future investigations, the DOJ refuses to disclose the informant’s identity or provide any information about his alleged activities. If this dispute were to ever make it to court—say, in an action to enforce Nunes’ subpoena—is there an evidentiary privilege that supports the DOJ’s position?
Yes, there is. The government–informant privilege, which SCOTUS redefined in Roviaro v. United States, 353 U.S. 53 (1957), protects from compelled disclosure the identity of persons, or informers, who supply information about legal violations to the appropriate law-enforcement personnel. Despite the name’s implication, the privilege belongs to the government, not to the informer, but it protects informers from retaliation or retribution and encourages More…
What a sad month for the privilege. While I was away in trial and attending other day-job responsibilities the last few weeks, the president announced the death of the attorney–client privilege. It was a good life, and I’m sorry to see it end.
Born in 1577 in the English case of Berd v. Lovelace, 21 Eng. Rep. 33, the privilege lived a long life that emboldened some and frustrated others. It successfully navigated the Atlantic during Colonial America, survived a revolution and civil war, expanded during the Industrial Revolution, and withstood the Internet Age, only to perish abruptly and unceremoniously in cauldron of federal prosecutors, a president, a lawyer, and a porn star.
Rest in peace, dear privilege.
But wait. It appears the rule of law has resurrected the privilege, and it may return stronger than ever. Let’s unfold this death-and-resurrection story. More…
We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news. Here is my Monthly Privilege Roundup of interesting privilege issues for December 2017.
→The Google/Uber trade-secrets litigation has produced several privilege-related issues, as I profiled here and here—but nothing like this. The court delayed the trial after the ND Cal. U.S. Attorney revealed a letter (available here) from a former Uber employee claiming that a former Uber in-house attorney instructed employees to mark emails as “privileged” even if they were not seeking legal advice. See Jennifer Williams’ article on the issue, which quotes yours truly, for more information.
→A lawyer for the Trump Transition Team sent a letter, available here, informing House and Senate leaders that the Special Counsel’s Office (Mueller) “unlawfully” received privileged information from the General Services Administration. Mueller’s office denies the allegations. Read the CNN story here. Katie Phang, MSNBC legal analyst (and an excellent trial lawyer) opines that the Transition Team’s privilege concern is a “legal nothingburger.” See Katie’s commentary here.
→President Trump tweeted that he fired General Mike Flynn “because he lied to the Vice President and the FBI.” This statement, of course, contradicts the President’s earlier statements More…