Bending Toward Justice: Donald Trump Jr.’s dubious claim of attorney-client privilege

Donald Trump Jr. testified for nearly eight hours on Wednesday in closed session before the House Intelligence Committee, which is investigating Russia's interference in the 2016 presidential election. According to the Washington Post, Trump Jr. refused to answer questions about a conversation he had with his father, President Donald Trump, in July of this year concerning a July 2016 meeting Trump Jr. and other campaign officials attended at Trump Tower with a Russian lawyer. Trump Jr. claimed that the conversation with his father was protected by attorney-client privilege, making it confidential.

This is dubious, at best. Let’s unpack it.

You’ll recall that in July of this year, the New York Times reported that Trump Jr. met with a Russian lawyer with links to Russian President Vladimir Putin at Trump Tower in July 2016, in the heat of the presidential campaign. Jared Kushner and Paul Manafort also attended the meeting, according to the Times. When asked for comment about the article before it was published, Trump Jr. told the Times that the meeting involved a policy discussion of U.S. families’ adoption of Russian orphans. But when it became clear that the Times had access to Trump Jr.’s email about the meeting — and that the emails indicated the meeting centered on the Trump campaign getting “dirt” on Hillary Clinton — Trump Jr. publicly released the emails. Through later reporting by the Washington Post, we learned the President had dictated Trump Jr.’s statement to the Times claiming the meeting was about adoption policy.

In questioning by the House Intelligence Committee on Wednesday, Trump Jr. testified that he spoke with his father about the June 2016 Trump Tower meeting for the first time this year, after the Times published the story with Trump Jr.’s emails. But he refused to testify about what he and his father discussed. He asserted an attorney-client privilege over the conversation because one or more lawyers were present.

Attorney-client privilege is generally a matter of state law (as opposed to federal law). It is a privilege a witness may assert to avoid having to testify  about conversations the witness had with his attorney. The law recognizes the privilege so as to encourage attorneys and clients speaking freely and confidentially with each other, for the purpose of the client seeking legal advice.

Generally speaking, if a third party participates in a conversation between a lawyer and her client, the conversation will not be covered by the attorney-client privilege. The presence of the third-party destroys the confidentiality of the communication.

There may be something else going on here.

It’s not entirely clear from the reporting what Trump Jr. said about who was present, or on the phone together, when he and his father talked about the July 2016 Trump Tower meeting. Was it one lawyer? Two lawyers? Which lawyers? If Trump Jr.’s lawyer was the only other person in the conversation, then the President’s participation eviscerates the privilege. If the President’s personal lawyer was the only attorney involved, then the attorney-client privilege never attached to the conversation, because that lawyer doesn’t represent Trump Jr. We get the same result if a single lawyer from the White House Counsel’s office was present, because courts have ruled that the President — in his personal capacity — doesn’t have an attorney-client relationship with the White House Counsel.

What if Trump Jr.’s personal lawyer and the President’s personal lawyer participated in the conversation? Then we get into questions about a joint defense privilege. When the government is conducting a complex criminal investigation involving several potential defendants, it is common for the potential defendants and their attorneys to enter into a joint defense agreement, in which they agree to share information, legal research and strategy. We have reason to believe there is a joint defense agreement among at least some potential defendants in Special Counsel Robert Mueller’s investigation, because it’s been reported that Michael Flynn withdrew from that agreement before agreeing to plead guilty and cooperate with Mr. Mueller.

If there were a discussion between the President, Trump Jr. and their two personal lawyers, and only the lawyers spoke during the conversation to give legal advice, then it is possible that Trump Jr. could rely on a joint defense privilege to avoid answering questions about the discussion.

So far, the reporting about the conversation, and the basic facts Trump Jr. testified to on Wednesday, do not support this hypothetical argument. Keep in mind, too, that Congress doesn’t always recognize a claim of attorney-client privilege, much less a claim of a joint defense privilege. But the House Republicans control the Intelligence Committee and are unlikely to agree to issue a subpoena to Trump Jr. to compel his testimony. Senate Democrats are pushing, too.

The Special Counsel, on the other hand, may very well subpoena Trump Jr. to testify before the grand jury. If the President’s son refuses to testify about the conversation with his father in that setting, on a claim of attorney-client privilege, we can expect the Special Counsel to ask a court to rule on whether the privilege applies. So stay tuned.