During a week in which President Trump's lawyer asserted that a president legally cannot obstruct justice simply by virtue of being president, it might seem difficult to top the brazenness of that legal strategy. But Donald Trump Jr. gave it a run for its money on Wednesday.
In closed-door testimony before the House Intelligence Committee, Trump Jr. invoked attorney-client privilege to withhold details of a conversation with his father about that Trump Tower meeting with a Russian lawyer. The reason: Legal counsel happened to be on the call. As The Post's Karoun Demirjian and Rosalind S. Helderman report:
Rep. Adam B. Schiff (D-Calif.) said Wednesday that Trump Jr. told the committee he did speak with his father about the Trump Tower meeting several days later, after emails showing he had accepted the meeting after being offered “dirt” on Clinton were made public. However, Trump Jr. declined to detail the conversation to the committee, indicating a lawyer had been present and he believed it was subject to attorney-client privilege.
In that interview and in another with The Post's Greg Sargent, Schiff, the ranking Democrat on the committee, said he doesn't believe the claim holds water and that Trump Jr.'s lawyers asked for more time to decide whether to continue pursuing it -- recognition, perhaps, that they themselves aren't convinced the claim will work. (If they try it, Schiff has said he'll issue a subpoena. But as Sargent notes, it would be up to Republicans to make the final decision.)
And Trump's lawyers have good reason to be skeptical. Legal experts struggle to find any good reason that attorney-client privilege should apply to the situation. Trump Jr., after all, isn't declining to disclose things he talked about with his lawyer, but rather things he talked about with his father.
“There is precedent for a witness claiming attorney-client privilege during testimony, but that is credible in cases where the witness had directly consulted an attorney on the matter germane to committee questions,” said Mark Rozell, an expert on executive privilege at George Mason University's Schar School of Policy and Government. “But just because an attorney happens to be in the room? That does not strike me as credible.”
Rozell noted that, were this to be an acceptable standard, White House officials and politicians more generally could simply have a lawyer present for everything they do to guard against having to answer questions about it to investigators or lawmakers.
Richard Epstein of New York University's law school and the Hoover Institution said the claim of attorney-client privilege in this case “looks very shaky indeed,” even as more details need to be known to be sure.
“The privilege usually applies to those cases where you seek in confidence the advice of your attorney,” Epstein said. “A lawyer in the room would have to advise both parties as clients on their legal position for this to be the case. It does not even appear that there was any person occupying that role at all.”
Samuel Buell of Duke University's law school agreed: “Any communications between the Trumps would not be protected, unless the two were effectively speaking jointly to a lawyer to obtain legal advice for both of them. That seems highly unlikely. And the mere presence of a lawyer in the room is legally irrelevant. This is likely a frivolous assertion of the privilege.”
And actually, the fact that Trump Jr. was talking to his dad is precisely the reason attorney-client privilege likely doesn't exist. As Buell's Duke colleague Lisa Kerns Griffin noted, "the presence of third parties typically destroys that confidentiality."
Perhaps the biggest takeaway here is that Trump Jr. even sought to make the claim. It's certainly not an admission of guilt or anything like that, but during a week in which the Trump legal team made a big stretch by arguing that a president can't legally obstruct justice, reaching for an attorney-client protection in this case suggests they aren't exactly fighting from a position of legal strength here. They are now both a) trying to knock down the idea that one of two major pillars of the Russia investigation -- one being obstruction and the other being collusion -- would even be a crime and b) floating the possibility of invoking an attorney-client privilege that legal experts say simply doesn't exist.
In the latter case, the reason Trump Jr. wouldn't want to dish is pretty clear: The Washington Post reported in late July that the president had dictated Trump Jr.'s misleading response to reports about the Trump Tower meeting. Trump's advisers admitted anonymously that it was a serious misstep that risked implicating the president in an appearance of a coverup.
“This was . . . unnecessary,” one of the advisers told The Post at the time. “Now someone can claim he’s the one who attempted to mislead. Somebody can argue the president is saying he doesn't want you to say the whole truth.”
And now you could say the same of Trump Jr.'s effort to invoke attorney-client privilege.