Sunday, June 04, 2023

Even Donald Trump deserves the protections of Attorney-Client Privilege

An open letter to my liberal criminal defense lawyer colleagues:

I know, I know -- you really don't like Donald Trump.  And even though you are a criminal defense lawyer, you don't mind him being charged or even convicted.  

I'm not going to try to change your mind on any of that.

But... what prosecutors and judges are doing in order to obtain that charge and conviction should give you great concern.  Specifically, according to this New York Times article, the government has forced one of Trump's lawyers, Evan Corcoran, to testify before the grand jury and to give up his work product, including written and voice notes.

This is absolutely insane.

From the Times:

Government investigators almost never obtain a clear lens into a lawyer’s private dealings with their clients, let alone with such a prominent one as Mr. Trump. A recording like the voice memo Mr. Corcoran made last year — during a long drive to a family event, according to two people briefed on the recording — is typically shielded by attorney-client or work-product privilege. Some details of the notes were reported earlier by The Guardian.

But in March, a federal judge ordered Mr. Corcoran’s recorded recollections — now transcribed onto dozens of pages — to be given to the office of the special counsel Jack Smith, who is leading the documents investigation.

The decision by the judge, Beryl A. Howell, pierced the privilege that would have normally protected Mr. Corcoran’s musings about his interactions with Mr. Trump. Those protections were set aside under what is known as the crime-fraud exception, a provision that allows prosecutors to work around attorney-client privilege if they have reason to believe that legal advice or legal services were used in furthering a crime.

But using crime fraud to obtain Corcoran's lengthy voice memos to himself about his interactions with the former president is a huge stretch of that doctrine and may be used in the future to get your notes with your clients.  We should all be pissed.  

 Unfortunately, the order by Judge Beryl Howell (a former narcotics prosecutor, who helped create and defend the Patriot Act) is sealed so we can't see the reasoning.  But the Times has this:

Judge Howell’s memorandum compelling Mr. Corcoran to answer questions in front of a grand jury and to produce his notes described the lawyer as essentially a casualty of Mr. Trump’s months of gamesmanship with investigators and National Archives officials about returning the documents, according to a person familiar with the memo’s contents.

As The New York Times reported in April, Judge Howell wrote in the memorandum, according to the person familiar with its contents, that Mr. Trump’s earlier actions and “misdirection” of archives officials’ efforts to retrieve what turned out to be more than a dozen boxes of records were a “dress rehearsal” for the May subpoena.

 If prosecutors can get a criminal defense lawyers' notes and impressions every time a client offers some misdirection, then get ready for a flood of motions asking for our privileged files.  

This isn't the way, even if the target is Donald Trump.


Anonymous said...

“And even though you are a criminal defense lawyer, you don't mind him being charged or even convicted.”

But isn’t that true for any criminal?

Defense lawyers are not pro crime and lawlessness. We are not in favor of people being able to relentlessly break the law with impunity. The guy bragged about being able to murder somebody on 5th avenue and knowing that nobody would care. I care.

If he used his lawyer to continue his efforts to break the law and the lawyer’s memos are exposed, tough doo doo. Don’t involve a lawyer in your criminal activity.

So no, I do not like the government rummaging through attorney notes. But I do understand the legitimate goal that drives the waiver rule, and I don’t care who it is applied to.

Anonymous said...

And yet the government suffers no such embarrassment, even when they violate a defendant’s Sixth Amendment rights.

They’re generally allowed to say they’ll comply with the law or court orders with no real or indirect consequences.

Anonymous said...

Plenty of these communications reportedly flowed thorugh Boris Epshteyn, a political adviser and not a lawyer. There is no attorney-client-political advisor privilege.

Anonymous said...

"Some misdirection."

Anonymous said...

From your post, one would think you are auditioning for a part on Trump's legal team.

Anonymous said...

That warrants a separate blog post. DOM may have to recuse himself though.

I see possible felonies listed for the 2nd attorney and agents.

The government would not hesitate to indict a defense lawyer for even the suspicion of something like this. But some animals are more equal than others.

Anonymous said...

If you love Trump so much take it pro bono.

Anonymous said...

Boris is a lawyer. Boris Epshteyn - Wikipedia

Rumpole said...

Idiot comments. It’s whose ox is gored and they can’t see it. Defending Trump is like defending a terrorist at Guntanamo. It hurts your career and must be done. It’s very scary to see the forced disclosure of attorney memos to himself. Well said David. Even for a Heat fan.

Anonymous said...

I agree with David's overall point that attorney-client privilege needs to be upheld and protected. But what David neglected to mention in the post is that one of Trump's lawyers acted as the custodian for the subpoena, certifying that all responsive materials were produced. That was false. There is a collateral consequence to that false certification, including that the government will (justifiably) investigate how the false certification came about. If your client asks you to certify a subpoena (or testify as the custodian of records for a subpoena), and the testimony turns out to be not accurate, then you (and your co-counsel) may be opened up to providing subsequent testimony. Those actions are not acting as a lawyer, they are acting as a testimonial representative of the client. So before the blog readers stay on the high horse here (or continue the theme of outrage), think about how the attorney who decided to certify that subpoena response opened herself and her co-counsel (Corcoran) up to the crime-fraud investigation. On the surface, Trump used his counsel to make inaccurate assertions to the grand jury. Had counsel declined to certify the subpoena response (falsely and/or without adequate due diligence), then it is highly unlikely the government could have made a crime-fraud showing for counsel's notes or testimony related to the actions surrounding the documents.

Robert Kuntz said...

It baffles me that anyone (but lawyers especially) cannot grasp the simple notion that the powers you cede to the state, to pursue those whom you hate, will still be state powers when those whom you hate are the ones controlling the state.

In a thick catalog of offenses, this may be Trump's most dangerous legacy: That he is so odious that even those sworn to uphold the Constitution enthusiastically throw it overboard in their eagerness to see him vanquished. He's a vile, self-serving grifter, so his conduct is to be expected. But people of good will (and lawyers especially) are supposed to be capable of better.

Oh and lastly: "If you love Trump so much take it pro bono" has to rank as among the most inane and juvenile comments ever posted where others might read it. Well thought out for you to remain anonymous.

Anonymous said...

@ Robert Kuntz: Well said.

Anonymous said...

Now that the indictment has been unsealed, maybe it is worth another post to talk about why Corcoran had Babb sign the certificate of compliance at the last minute--and whether it is, indeed, "insane" to think that the crime-fraud exception applies in this circumstance?

The post impugned Judge Howell's crime-fraud order based on the premise that this should get the "liberal defense attorney" readers of the open letter "outraged" because this could occur "every time a client offers some misdirection."

A more helpful and constructive post would involve how not to NOT let this happen to you and your client by 1) not allowing counsel to certify the completeness of a response to a corporate subpoena; and 2) discuss what to do (and not to do) if you suspect your client may not be responding truthfully or adequately to a GJ subpoena. The answer is not 'get your less experienced co-counsel to sign the certificate at the last minute.' Maybe the answer is designate a non-lawyer or someone who is not part of the criminal defense team, or take 5? If your client is engaged in an ongoing obstruction or efforts at non-compliance with a subpoena, remember we all have an oath to uphold as members of the bar.
Inserting yourself into the process (or inserting another member of the defense team) seems like really bad lawyering that could then result in involuntary testimony and waiver of privilege as it applies to communications related to the obstruction. That appears to be what happened here.

How about a new thread on this for fairness and to better address suggestions for how to potentially avoid the disclosure of the attorney notes and required testimony?