Can Don Jr cite attorney/client privilege in refusing to tell Congress what he discussed with his dad?

Seems verrrrrry shady at first blush. The issue came up during his testimony yesterday before the House Intelligence Committee, when he was asked what, if anything, he discussed with the president about that meeting Junior took with the Russian lawyer during the campaign. Junior admitted that he and dad had spoken about it this past summer, after the NYT first broke the news that the meeting had taken place and that the purpose was to see what dirt the lawyer might have on Hillary Clinton. And what did you and the president discuss specifically, the committee members asked Don Jr.

That’s privileged, he apparently answered. Attorney/client. Attorney/client?

Junior’s not a lawyer and dad sure as hell isn’t either. There was, however, at least one lawyer on the phone call between them. Is that fact alone enough to create a privileged conversation? Er, no:

Though neither Trump Jr. nor the president is an attorney, Trump Jr. told the House Intelligence Committee that there was a lawyer in the room during the discussion, according to the committee’s top Democrat, Rep. Adam Schiff of California. Schiff said he didn’t think it was a legitimate invocation of attorney-client privilege.

“I don’t believe you can shield communications between individuals merely by having an attorney present,” he said, after the committee’s lengthy interview with Trump Jr. “That’s not the purpose of attorney-client privilege.”

Indeed, you can’t automatically privilege a conversation with someone else by plopping your lawyer down in a chair next to that person. It’s not talismanic, where the mere presence of a lawyer in the room magically places what’s discussed beyond the reach of any court or congressman. Not even one-on-one conversations with your own lawyer are necessarily privileged. A convo needs to be (1) for the purpose of giving and receiving legal advice and (2) actually confidential in order for it to qualify as privileged. You and your lawyer talking about the Super Bowl isn’t privileged. More importantly, you and your lawyer chatting about legal advice *with a third party present* isn’t confidential and therefore also not privileged. That’s what’s really eyebrow-raising about what Don Jr told the committee. If Junior and his lawyer were discussing something with POTUS, arguably that would destroy the privilege because POTUS’s involvement has eliminated the expectation of confidentiality between Junior and his attorney.

But wait. All we’re going on here is what Schiff claims Junior said. Here’s what the NYT says happened:

Testifying in a closed session before the House Intelligence Committee, Mr. Trump claimed that his conversation over the summer with his father, two days after The New York Times disclosed the June 2016 meeting at Trump Tower in Manhattan, was protected under attorney-client privilege because lawyers for both men were on the call.

Hmmmm. In theory, the fact that both sides have lawyers present during a conversation does nothing “extra” to create a privilege. If a divorcing couple and their attorneys sit down to discuss a settlement, that discussion obviously isn’t privileged. How could it be? They’re adversaries! But that’s the wrinkle here: Are POTUS and Don Jr allies or adversaries in the Russiagate probe? Sure, they’re father and son and they’re on the same “team” but there may come a point where Don Jr is charged with something and is given the opportunity to provide information about his father in return for leniency. If that happens, they’re emphatically adversaries. Until it does, though, what’s their legal posture with respect to each other? If they’re allies, does that matter for purposes of invoking the privilege for conversations between them and their lawyers?

Yup, sure does, notes lawyer Ken “Popehat” White. There’s a good chance (albeit not a certainty) that Junior is right and the phone call was privileged.

The basic idea is this: when the feds are after you and your pals, you need to figure out what they might be after, and whether you did anything illegal, and what sort of trouble you might all be in. So you want to exchange facts you know, and your lawyers want to exchange legal theories and strategies. But normally if you exchange those with other people or their lawyers you’d be giving up the privilege. So everyone — you, your pals under investigation, and all your lawyers — enter something called a Joint Defense Agreement or Common Interest Agreement or Joint Information Sharing Agreement. You agree that you call have a common interest in defending the government’s investigation, that you want to share information to promote that common interest for your mutual benefit, and that everyone agrees to keep strictly confidential what they learn from the other members of the agreement. If anyone decides to talk to the government they have to exit the agreement and still keep what they learned before confidential. The idea is that because of the obligations of the agreement, the information is only being shared with people with a legal obligation to keep it confidential, so the confidentiality of attorney-client communications is not lost.

Is there any evidence that a Joint Defense Agreement exists among Trump and his inner circle? There sure is: Mike Flynn withdrew from his own information-sharing agreement with POTUS a few weeks ago when he decided to play ball with Mueller. If Team Trump had a JDA with Flynn, they likely have one with all major players in the investigation, including Don Jr. (Hopefully it’s formalized in writing, not merely informally agreed upon, as that would be … problematic.) So the phone chat about the meeting with the Russian lawyer would indeed be privileged — if, as noted above, it was for the purpose of giving and receiving legal advice. According to the Democrat Schiff, “As I understand it, this particular conversation for which they were claiming privilege took place after the emails became public, and, was therefore focused more on the reaction to the publication of the emails.” Were the Trumps and their lawyers discussing politics and PR, i.e. how to spin the revelations about Junior’s meeting with the Russian lawyer, or were they (also) discussing the legal ramifications of that spin, such as the president admitting he had a role in drafting Junior’s initial disingenuous statement about what the purpose of the meeting was? If it was just the former then, again, the mere presence of the lawyers doesn’t make the conversation privileged. It has to be for legal advice.

Exit question: Uh, does the attorney/client privilege even exist when you’re testifying before *Congress*? It’s recognized by courts, of course, but “Congress takes the position that the attorney-client privilege and the work-product doctrine are principles of state or common law, not binding on the national legislature. Thus committees are not required to, but may exercise their discretion to, recognize a claim of privilege on a case-by-case basis.” If Don Jr’s assertion of privilege is recognized, it may only be because Republicans, not Democrats, currently control the House Intel Committee.

This post originally appeared on Hot Air

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