In the world that most of us live in, when we are asked questions by an authority figure – a judge, the police, our boss – we feel some pressure to answer their questions honestly. But in the investigations surrounding the various crimes and fraudulent activities perpetrated or encouraged by the crime boss formerly known as President Donald Trump, lots of people are discovering ways to avoid accountability. We hear a lot about these various types of “privilege,” so I thought I’d try to sort them out here.
NOTE: I am not a lawyer and I don’t play one on TV – although I sometimes talk legal stuff among my friends and family. This is one of those situations.
The Fifth Amendment
This is a fundamental protection for individuals against the prosecutorial and law-enforcement power of the government. If someone charged with a crime could be required to confess to it, this would make things a lot easier for the police and court system, but not so great for innocent defendants. No investigative resources would be required – the authorities could simply lock up a defendant until he agreed to admit to the crime. Arrest would be tantamount to conviction. Easy-peasy.
Popular TV crime shows have made us all aware of this protection by showing law enforcement officers reading suspects their “Miranda Rights.’’ You know how this goes:
In the current investigations by the January 6 committee as well as other tribunals, we’re seeing people like disgraced retired General Michael Flynn (convicted of lying to the FBI, pardoned by Trump, now being pursued by the Inspector General of the Department of Defense for financial misdeeds) grunting “Fifth” when Congresswoman Lynn Cheney asked “Do you believe in the peaceful transition of power in the United States of America?” What’s up with that? Shouldn’t a retired three-star lieutenant general acknowledge the oath he took to “support and defend the Constitution of the United States against all enemies, foreign and domestic?”
Attorney-Client Privilege
Here’s what the Legal Information Institute at Cornell University says about this privilege:
Attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and their client private. Communications made to and by a lawyer in the presence of a third party may not be entitled to this privilege on grounds that they are not confidential.
The privilege can be affirmatively raised in the face of a legal demand for the communications, such as a discovery request or a demand that the lawyer testify under oath. A client, but not a lawyer, who wishes not to raise attorney-client privilege as a defense is free to do so, thereby waiving the privilege.
This privilege exists only when there is an attorney-client relationship. Furthermore, some courts can also obtain information despite attorney-client privilege if there exists overriding public policy interest. For example, a lawyer can be required to disclose the location of their client if doing so furthers the wellbeing of a child.
The sentences in bold type in this description are important for a couple of reasons. If someone in Trump world talked with their attorney while someone else was part of the conversation – either in the room or on the phone – the privilege is waived because the conversation is no longer confidential.
There has to be an attorney-client relationship. A little dive into this tells me that the signing of a fee agreement is not the only way that an attorney-client relationship can begin. An implied attorney-client relationship can be created even though the client never signed a fee agreement. I didn’t know that.
Various lawyers who worked in the White House for the disgraced twice-impeached losing 2020 presidential candidate Donald Trump have been the subject of some discussion of attorney-client privilege. White House Counsel Pat Cippolone represented the President in his official capacity, whereas almost all of Trump’s activity of interest to the January 6 Committee was undertaken either in his personal or campaign capacity. Therefore Cippolone and others should not be able to successfully claim that attorney-client privilege exempts them from the necessity of answering questions. The testimony of Cippolone that we have seen so far indicates that he does not feel restricted by the attorney-client privilege.
Executive Privilege
According to Wikipedia, executive privilege is the right of the president of the United States and other members of the executive branch to maintain confidential communications under certain circumstances within the executive branch and to resist some subpoenas and other oversight by the legislative and judicial branches of government in pursuit of particular information or personnel relating to those confidential communications.
The right comes into effect when revealing information would impair governmental functions.
Neither executive privilege nor the oversight power of Congress is explicitly mentioned in the United States Constitution.
However, the Supreme Court of the United States has ruled that executive privilege and congressional oversight each are a consequence of the doctrine of the separation of powers, derived from the supremacy of each branch in its own area of Constitutional activity. Members of the executive branch cannot always be compelled to answer questions of the other two branches of government.
The basic idea behind executive privilege is that although an entity like the U.S. government requires a lot of transparency, it can’t function if there’s no way to speak about things confidentially. You’ll recall that even the Constitutional Convention met behind closed doors and shuttered windows to allow open discussion of sensitive topics without creating a public uproar.
Lawfare blog recently explored this issue at some length. You can read it here, but I’ll mention some of its most important points:
The Supreme Court has held that executive privilege is not an absolute privilege but a qualified one that must yield when there is a compelling need for the information.
There are also a number of historical examples that support the position that executive privilege does not apply to evidence of misconduct, including President Reagan’s decision to waive executive privilege during the Iran-contra investigation.
The limits of executive privilege are still being adjudicated. In Pat Cippolone’s testimony that we have seen so far, he seems to have drawn a line between answering questions about “what he thought” (which is not protected by executive privilege) and “what he told the President” (which would probably be protected by executive privilege unless his decision not to talk is part of a criminal conspiracy). The January 6 Committee seemed content with how Cippolone has drawn this line.
We have also heard the TV commentators state positively that Steve Bannon cannot claim executive privilege because he had left the Trump White House years before the January 6 attack on the US Capitol. As I’ve been looking into this over the past few days (because all you need to be an expert on something is the google machine), I’ve seen some suggestions that a person not on the official staff – like Bannon – could still be considered as filling an advisory role to the President and thus eligible to be afforded executive privilege. I can’t find a clear statement of this, however, and the really smart TV lawyers continue to say that Bannon’s claim of executive privilege is bogus. Because they know more about this than I do, I’ll go with their conclusion that Bannon’s claim of executive privilege is nonsense, as is Trump’s letter suspending executive privilege so that Bannon can testify.
There are three other types of privilege that I’m going to mention here, even though no one has claimed these in the course of the current investigation. Yet.
Spousal Privilege
Common law and many state courts recognize some variation of “spousal privilege.” This type of privilege does not seem particularly relevant to the ongoing Congressional investigation (although Ginni Thomas does come to mind), but my cursory reading about it says that an exemption to this privilege exists if a spouse is charged with certain types of crimes — usually some sort of domestic violence. In some states, the law says that while spouses cannot be forced to testify against one another, a spouse may choose to do so.
In addition, if one spouse tells another person about the communication for which they’re claiming spousal privilege, that privilege is considered waived under some state laws. I interpret this to mean that if Ginni told Mark Meadows about the discussions she and Clarence had about an ongoing criminal conspiracy, that privilege may be considered waived. Clarence and Ginni live in Virginia, and I don’t know how Virginia law would apply to all of this. If this happened in DC, I don’t know how DC law would apply to all of this either.
It's also possible that Melania could be asked about her husband’s statements or actions. I don’t think this is an issue, for several reasons:
I don’t think Melania was actually living in the White House or spending any time with the crime boss formerly known as President Donald Trump – aka the disgraced twice-impeached losing 2020 presidential candidate.
If they were spending time together, I don’t think they talked.
If she squawked, it might curtail the hush money he’s paying her
I don’t know what DC or Florida law is on this issue.
I’ll leave further discussion of this to people who know more about it than me.
Physician-patient Privilege
Most jurisdictions recognize doctor-patient privilege, but there are many exceptions to this privilege. The Federal Rules of Evidence, for example, affords the privilege to the relationship between a psychotherapist and patient but contains no general doctor-patient privilege.
Again, I’m not going to examine this very closely, because I can’t see how it applies here – unless Dr. Ronny Jackson is asked about just exactly what drugs he was providing the crime boss formerly known as President Donald Trump – aka the disgraced twice-impeached losing 2020 presidential candidate – or to Junior.
Clergy Privilege
The clergy-penitent privilege (also known as the clergy privilege, confessional privilege, priest-penitent privilege, clergyman–communicant privilege, and/or ecclesiastical privilege) is a recognized form of privileged communication that protects the contents of conversations between religious advisers and an advisee. Generally speaking, this means that any conversation had with religious leaders (assuming that they are acting in their religious capacity) cannot be brought into court.
The extent of this law varies from one jurisdiction to another. In general, despite the privilege, a trial judge may be able to compel disclosure of such confession if the trial judge decides that disclosure is necessary to properly administer justice. Other jurisdictions use a balancing test of sorts before deciding to disclose clergy-privileged communications. The communication in question must originate in confidence that it will not be disclosed, meaning that it is made in the context of the relationship between a clergy person and communicant. To merit this privilege, the communication must meet two conditions:
It must have been made with the expectation of confidentiality.
A breach of confidentiality would affect the relationship between the parties. If the communication is disclosed, the injury to the relationship would surpass the benefit gained in litigation.
I don’t see how this enters into the January 6 Committee’s investigation (or other investigations surrounding the crime boss formerly known as President Donald Trump – aka the disgraced twice-impeached losing 2020 presidential candidate. Although he surrounds himself with religious folks and seems for some reason to have broad support among conservative religious groups, he does not appear to live a life deeply rooted in religious faith.
In some states, a claim of this privilege needs to be accompanied by evidence that there is an actual relationship between the member of the clergy and the individual who expects their disclosures to remain confidential.
In addition, if the individual has disclosed his misdeeds to other people as well as to the member of the clergy, that privilege may be considered to be waived. Since the crime boss formerly known as President Donald Trump – aka the disgraced twice-impeached losing 2020 presidential candidate – is constitutionally incapable of keeping his mouth shut, this privilege should not come into play.
GREAT opinion. Personally, I think you know a hell of a lot about this stuff. Again, wish I could take one of your courses.
Karen, this is your best one yet. Actually, I laughed my way through most of it, especially the part about spousal and clergy privilege. Your descriptions are hilarious. But the best one is crime boss. I’m loving it. And you are not writing in a void. Reading your stuff is now part of my daily routine. Don’t stop!