Donald Trump Jr., the president’s son, met with the House Permanent Select Committee on Intelligence (HPSCI) on Wednesday and raised eyebrows when he invoked attorney-client privilege to avoid answering questions about a phone conversation he’d had with his father this summer. The conversation was to figure out how to handle the breaking news about his Trump Tower meeting in June 2016 with Russian attorney Natalia Veselnitskaya.
“Attorneys for both the president and his son were on the call, which took place sometime after a July 8, 2017 New York Times story about the meeting, according to the people familiar with the matter,” the Wall Street Journal reported.
So will Congress be stymied in learning more about this conversation? Will Don Jr.’s strategy to keep them in the dark work? No, Congress can get this information from Donald Trump, Jr. if it presses its case, but it will turn more on the will of Republican HPSCI members than any purported legal claim of privilege by Don Jr.
That’s because unlike judicial courts, Congress does not feel bound to honor common law evidentiary privileges like attorney-client privilege. By contrast, the Fifth Amendment privilege against self-incrimination is valid before Congress because it comes from the Constitution rather than common law.
I wrote about the law and history of of attorney-client privilege before Congress in a law review article, “Congressional Due Process.” As you will see, I believe Congress should be more respectful of the privilege.
But let’s say Congress agrees to honor traditional attorney-client privilege. There are still questions about the applicability of the privilege to this father-son conversation with one or more attorneys present.
The traditional elements of attorney-client privilege are: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.
This was clearly a communication, but there are serious questions about whether the facts meet all three other elements.
If the Trumps have a joint defense agreement or common interest privilege, they might be able to share information in a privileged manner.
An important question is who were the lawyers on the call? Here, it matters whether it was a White House lawyer or a private lawyer. President Trump enjoys attorney-client privilege with his personal lawyer John Dowd but probably does not with White House lawyer Ty Cobb (see Clinton-era DC Circuit case In re Lindsey). Conversations with Cobb may be covered by executive privilege, but that wouldn’t extend to a conversation with Don Jr. about non-official acts. If it was a White House lawyer on the call, the privilege claim fails, because both prongs (2) & (3) simply would not apply.
Finally, was the purpose of the call to obtain legal advice? Or manage a political response? That can be a hard question to sort. But there are lots of cases where courts have rejected privilege claims made by companies about meetings attended by attorneys that were really about business matters rather than obtaining legal advice. One can imagine the perverse results if that were not the case: Bring along a lawyer to all such meetings and presto –they’d be insulated regardless of the content of the conversations.
If Congress wants to get this information, the HPSCI chair, here Rep. Mike Conaway (R-Texas), should rule that the privilege does not apply. If Don Jr. refuses to provide the subpoenaed information, then the House should hold him in contempt and undertake further actions as necessary to enforce that contempt order, either by means of judicial order, inherent contempt, or criminal contempt referral to the Justice Department (which, in this case, could potentially be to Special Counsel Robert Mueller). As such, it is the will of the Republicans on the intelligence committee and in leadership that will most likely determine whether Congress vindicates its interests in the face of this claim of attorney-client privilege.