Even occasional “Law & Order” viewers know that the conversations between a criminal defendant and his lawyer are normally protected from prosecutors. However, when any lawyer becomes a co-conspirator, such attorney-client privilege evaporates because of what is known as the “crime-fraud exception.” If you’re participating in a crime rather than defending a criminal, you and your client don’t get the benefit of the attorney-client privilege.
In the case of former president Donald Trump, we may soon get a treatise on the crime-fraud exception, as the matter is poised to come up in a shockingly large number of instances.
U.S. District Judge David O. Carter found in a case concerning the Jan. 6 committee’s subpoena of attorney John Eastman’s emails that while some materials might be protected, “the crime-fraud exception applies when (1) a ‘client consults an attorney for advice that will serve [them] in the commission of a fraud or crime,’ and (2) the communications are ‘sufficiently related to’ and were made ‘in furtherance of’ the crime.”
Carter added: “It is irrelevant whether the attorney was aware of the illegal purpose or whether the scheme was ultimately successful. The exception extinguishes both the attorney-client privilege and the work product doctrine.”
Carter went on to find that whether the charge might be obstruction of an official proceeding — i.e., the joint session of Congress to count electoral college votes — or conspiracy to defraud the United States, it was “more likely than not” that Trump committed the crimes and that Eastman “dishonestly conspired” with him. With regard to an email chain that included Eastman’s “how to” memo designed to keep Trump in power, Carter wrote that “the draft memo pushed a strategy that knowingly violated the Electoral Count Act, and Dr. Eastman’s later memos closely track its analysis and proposal.”
Since the memo “likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States,” Carter found, “it is subject to the crime-fraud exception.” Which means Eastman must now be concerned that he will be a subject of the Justice Department’s inquiry.
Others might be in similar trouble. In Georgia, Rudy Giuliani has already gotten a target letter from the Fulton County district attorney as part of that state’s election-interference inquiry. Communications between Giuliani and Trump therefore might not be protected by the attorney-client privilege. If Giuliani does not want to talk about them, his best bet could be to take the Fifth Amendment.
Also in Georgia, Fulton County Superior Court Judge Robert C.I. McBurney denied former Trump campaign lawyer Kenneth Chesebro’s attempt to wriggle out of his testimony in front of a grand jury. Some of Chesebro’s work for the Trump campaign will fall within the bounds of confidentiality, McBurney found. However, there are also points of interest that are “not off-limits,” he wrote, for instance, “his interactions with the individuals in Georgia seeking to prepare a slate of ‘alternate’ electors weeks after the final vote count showed former President Trump losing by over 10,000 votes in Georgia” — in which case the crime-fraud exception might come into play.
More recently, the New York Times reported in an article about the document seizure at Mar-a-Lago that Trump attorney Evan Corcoran “drafted a statement” that another Trump attorney, Christina Bobb, “who is said to be the custodian of the documents, signed.” The statement “asserted that, to the best of her knowledge, all classified material that was there had been returned, according to two people familiar with the statement,” the Times said.
The Justice Department’s affidavit effectively says this representation was false. Did Trump lie to them? We simply don’t know. But it is mind-boggling to imagine that either attorney helped craft a letter without personally examining the documents. Here, too, lawyers might be asked to testify, refuse to do so and face the government’s assertion of the crime-fraud exception.
“If I were the lawyers advising Trump on his document negotiations with the U.S., and perhaps making statements to the government that have turned out to be false, I would be considering getting my own counsel as well,” former House impeachment co-counsel Norman Eisen told me. “But we are not privy to all the evidence in the various and expanding open matters, and so we need to wait and see how things develop.”
In sum, whenever a lawyer ceases to be a lawyer and become a participant in an allegedly illegal scheme, two things happen. First, the attorney-client privilege might be lost, resulting in their compelled testimony. Second, the lawyer might be at risk of prosecution and then might need to take the Fifth. And he might need to stop representing a client whose interests suddenly contrast with his own. (Trump lied to me! No, the lawyers lied!) One can understand why so many attorneys have declined the invitation to represent Trump.