Although Giuliani has not been asked to testify himself, he has said the prospect “raises significant issues concerning legitimacy and constitutional and legal issues,” including “attorney-client and other privileges.”
But Giuliani may be mistaken, according to legal experts. Trump’s communications with Giuliani, for several reasons, may not be protected.
The attorney-client privilege shields confidential communications between a lawyer and a client, so long as they were made for the purpose of giving legal advice.
Giuliani’s first problem is that he has called the representation into question.
Through much of the Trump presidency, Giuliani held himself out as the president’s personal attorney.
When he announced a trip to Kiev in May, Giuliani planned to encourage the new administration to probe connections related to former vice president Joe Biden and his son Hunter. The reason, he told the New York Times, was “because that information will be very, very helpful to my client.” Giuliani canceled his trip after the story was published.
Recently, however, he has said the opposite — that he views himself acting not as a lawyer but as an emissary. During an interview with the Atlantic last week, he said of his work in Ukraine: “I’m not acting as a lawyer. I’m acting as someone who has devoted most of his life to straightening out government.”
But even if a court decided that Giuliani was operating as an attorney, the privilege applies only to communications between a lawyer and a client for the purpose of obtaining legal advice.
It does not protect any conversation Giuliani may have had with the president of Ukraine or any other foreign official, even if Trump was on the phone. It’s unlikely that Giuliani’s conversations with State Department officials or attorneys, of which he recently said he possessed records, would be privileged, too.
Giuliani did not respond to a request for comment for this report.
The privilege requires an attorney to be providing confidential legal advice — and therefore does not shield a client’s directive to his attorney for nonlegal work such as persuading a foreign government to investigate a political opponent.
“When a client tells his lawyer, hypothetically, ‘Go off to the Ukraine and do X, Y and Z for me’ — that’s not happening for the purpose of obtaining legal advice,” said Kathleen Clark, an expert in government legal ethics who serves on the D.C. Bar’s Rules of Professional Conduct Review Committee. “That’s the client asking his agent or henchman to do something. Even if you purported to be acting as a lawyer, the privilege has no application.”
Executive privilege, on the other hand, is a nonstarter. It arises only by working in the government. Thus, as the president’s personal attorney, Giuliani could not claim executive privilege through Trump.
Much of the information sought by Congress falls outside of the attorney-client privilege, but assuming there were some remaining communications over which Giuliani wanted to invoke it, the law is unclear whether Congress could pose another obstacle.
Some legal experts have said that Congress does not recognize the attorney-client privilege because it is a common-law privilege, and Congress has authority, by statute, to override federal common law.
That reasoning is not correct, said Daniel Capra, a leading expert in evidence and legal ethics at Fordham University School of Law. It is a statute that establishes the federal law of privileges, by incorporating federal common law.
“As far as I have been able to find, there is no court case that has decided the issue. But there are indeed examples in which a congressional investigation takes the position that it need not respect attorney-client privilege,” Capra said, adding that any dispute has been settled or determined on other grounds.
Ethically speaking, an attorney is required to invoke privilege before a congressional investigation, unless the client has waived it.
“The lawyer has a duty to preserve confidences,” Capra said, calling it “a colorable claim” so long as “there is not some other consideration that makes the claim frivolous — like there was no legal work being done.”
Including a third party in an otherwise privileged communication generally results in a waiver of privilege, Roy Simon, professor emeritus of legal ethics at Hofstra Law, told The Washington Post. Under the law, “confidential” means that the only people privy to the communication are the client, attorney and maybe an agent (such as a secretary, paralegal or interpreter). By adding another person to the conversation who was not the client’s agent, courts have held that the client waived attorney-client privilege.
“Conversations with anyone from the Ukraine are not privileged. You cannot ward off a subpoena just by saying it was ’confidential,’ because none of those individuals are agents of Donald Trump,” Simon said.
There is also the crime-fraud exception to privilege. A court can pierce the privilege if a client is attempting to use the attorney to commit a crime, said Ellen Yaroshefsky, a professor of legal ethics at Hofstra. To prove that the exception applies, there must be evidence of the crime or fraud other than the documents or records sought. Given the information that has come to light surrounding potential criminal conduct such as campaign finance violations or extortion, the exception is a viable possibility.
The attorney-client privilege can’t be used as a sword and a shield, Lawrence Fox, former chairman of the ABA Standing Committee on Ethics and Professional Responsibility, told The Post.
Giuliani’s situation presents myriad issues — most saliently that he was acting as a fixer and doing nonlawyer work and that other people were present, defeating the privilege.
“You don’t get the privilege just by having a lawyer there,” Fox said. “Lawyers only seek to enforce the privilege when it’s clear you have a legitimate representation. If lawyers abuse it, courts can take it away from us.”