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9 legal experts on why Trump Jr. can't hide behind attorney-client privilege

“A lawyer isn't a walking cone of silence.”

President Trump And Melania Trump Host White House Easter Egg Roll
Donald Trump Jr. talks with reporters during the 139th Easter Egg Roll on the South Lawn of the White House April 17, 2017, in Washington, DC. 
Win McNamee/Getty Images

President Donald Trump’s eldest son, Donald Trump Jr., has refused to tell lawmakers on the House Intelligence Committee about conversations he had with his father this summer about the now-infamous June 2016 meeting in Trump Tower with a Russian lawyer with ties to the Kremlin.

Trump Jr. cited “attorney-client privilege” to avoid answering the lawmakers’ questions about the conversation, explaining that both his and President Trump’s lawyers were also on the phone call. But some lawmakers balked at that excuse. “I don’t believe you can shield communications between individuals merely by having an attorney present,” Adam Schiff, the top Democrat on the committee, told Politico. “That’s not the purpose of attorney-client privilege.”

Is Schiff right? Or can Trump Jr. withhold potentially incriminating information just because his lawyer was also on the phone call when he discussed the meeting with his father? To find out, I reached out to nine legal experts.

Their full responses, edited for clarity and style, are below.

Ric Simmons, law professor, Ohio State University

The attorney-client privilege unequivocally does not apply in this case. The purpose of the privilege is to encourage free and open communication between a lawyer and a client so that the lawyer will get the full story and be able to give accurate legal advice. Simply having a lawyer in the room does not make the communications privileged.

The privilege only applies to confidential communications with a lawyer (or a lawyer's agent) that are made for the purposes of receiving legal advice. This conversation fails these requirements on two counts.

First, the conversation was not a confidential communication between an attorney and a client — there were two people in the room, and it is inconceivable that the lawyer was representing both of those individuals as joint clients. We don't know which of these individuals the attorney was representing (if any), but the presence of any non-client in the room will mean that the communication is not privileged.

Second, there is no evidence that these statements were made with the purpose of receiving legal advice. There was no pending case and no legal decision that needed to be made at the time, so there is no reason to believe that either the president or his son were seeking legal advice from the lawyer who was present.

Jessica Levinson, law professor, Loyola Law School

Attorneys are not magic sorcerers. Merely having one in the room or on the phone does not automatically mean that anything that is said in that room or during that conversation is protected by the attorney-client privilege. The privilege protects conversations between attorneys and their clients. The point of the privilege is to allow people to speak freely with their attorneys without fear that what they see will later be made public or used against them.

To invoke the attorney client privilege, Donald Trump Jr. must show that the communication he is being asked about was a communication between at attorney and a client in which he asked the attorney for legal advice and the attorney gave legal advice. In addition, the communication must be confidential, so having third parties in the room complicates the question. More questions need to be answered before Donald Trump Jr. can invoke this very important privilege.

Diane Marie Amann, law professor, University of Georgia

The law entitles a person to consult his lawyer without fear that a court easily may force the disclosure of the person’s secrets. (I say “easily” because the rule is not absolute, and may be set aside for reasons such as the crime-fraud exception.) The goal of this attorney-client privilege is to encourage frank conversations about legal matters.

Ordinarily, the presence of an additional nonlawyer is understood to signal that the client does not care about confidentiality, and thus the privilege is not considered to apply. To avoid testifying about the conversation in that case, the person might try to invoke some other legal doctrine, such as the privilege against self-incrimination.

Andy Wright, law professor, Savannah Law School

Congress can reject Trump Jr.’s claim of attorney-client privilege even if it would have merit in court. While Congress ought to honor attorney-client privilege, it does not recognize it as binding and has rejected otherwise valid claims of privilege.

Even if Congress takes the doctrine seriously, Trump Jr.’s claim would only be valid if he could show that: 1) He and his father had a valid common interest agreement that extended attorney-client privilege to a third party, 2) that the purpose of the call was to obtain legal advice, not just handle politics or media relations, and 3) that the lawyers were their private attorneys and not White House lawyers or staff.

If White House lawyers or staff were involved in the communication, then the privilege would likely be waived because the substance related to pre-administration, non-official matters. Further, Clinton-era DC circuit precedent suggests the president does not enjoy attorney-client privilege with White House lawyers, and executive privilege would need to relate to official conduct, not Trump campaign activities. On that basis, the acting chair of the House Intelligence Committee could rule the privilege doesn’t apply and seek to compel the answer by means of a subpoena backed by contempt.

Renato Mariotti, former federal prosecutor, 2007 to 2016

The general rule is that a conversation is not privileged if a third person is present for the conversation with an attorney and a client. Some courts have found that the privilege was not waived when a family member was present where the family member had a role in taking care of the client.

For instance, if a son was a caregiver to an elderly parent. In this instance, both Trump and Trump Jr. are subjects of the same investigation, and any legal advice they received on these topics would potentially implicate the other person. I doubt any court would conclude this conversation was privileged.

Christopher Slobogin, law professor, Vanderbilt University

The purpose of the attorney-client privilege is to facilitate effective representation, by assuring the client that nothing said during an attorney-client conversation will be revealed publicly unless and until the client explicitly or implicitly allows its disclosure. The privilege does not apply unless the conversation is with the attorney for the purpose of seeking legal advice.

If Trump Jr. was simply talking to his father while an attorney happened to be in the room, the privilege claim is bogus. If on the other hand, the Trumps asked the lawyer to be present to hear what went down during the meeting, the privilege may apply. Of course, Trump Jr. is perfectly entitled to waive the privilege, and apparently has decided he doesn’t want to for reasons that remain unclear.

David Alan Sklansky, law professor, Stanford University

The attorney-client privilege only protects confidential communications between a lawyer and a client to facilitate the provision of legal services. If the two Trumps were talking confidentially with one or more lawyers who jointly represented both of them, and the only reason the father and son were talking with each other was to facilitate their conversations with the lawyers, and the point of those discussions was to facilitate legal services, then the privilege might apply — although even then there are exceptions.

But Rep. Schiff is completely right that the privilege doesn't apply just because a lawyer is included in the conversation. A lawyer isn't a walking cone of silence.

Jens David Ohlin, law professor, Cornell University

The answer is: It depends. The mere fact that two people are talking together in a room where a lawyer is present doesn’t automatically make it a privileged conversation. On the other hand, it’s possible for a conversation between two people to be privileged if a lawyer is present.

For example, imagine the following situation: Two people have engaged in conduct that they worry might be illegal or criminal. They decide to consult with an attorney, or a group of attorneys, and have a confidential conversation for the purpose of receiving legal advice. That would certainly be privileged under those circumstances.

So Trump Jr.’s invocation of the privilege really stands or falls depending on the specifics of what happened in that room. Was he talking with his father for the purpose of receiving legal advice from an attorney who was also present and engaged in providing legal counsel? If yes, then he has a plausible argument. But if he is trying to make a claim of privilege simply because there was a lawyer in the room, somewhere, then that’s not a valid basis for attorney-client privilege.

Asha Rangappa, former FBI agent and senior lecturer, Yale University

The attorney-client privilege is more limited than people believe. First, as it suggests, it only applies between an attorney and her client. The privilege will not apply if there is a presence of a third party who is not represented by the attorney. Further, even if the attorney represents both people, the communications must be kept confidential in order to assert the privilege later. But if the contents of the communication are disclosed by the client(s) to a third party, the privilege can be waived.

Finally, there is something called the crime-fraud exception to attorney-client privilege. This means that you cannot use privilege to shield the commission of a crime or to conceal evidence. In other words, talking to your attorney about your intention to commit or cover up a crime or a fraud won’t be protected.

Unless Don Jr.’s conversation was actually privileged, was not waived, and no exceptions apply, he’s effectively identified a third party [the lawyer] who can now be questioned by special counsel Robert Mueller as to what was discussed between him and his father regarding the meeting at Trump Tower.

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