Everything You Ever Wanted To Know About Privilege

Caveat: This post won’t address recent debates over the nature of White privilege or Male privilege. It’s focused instead upon two longstanding legal doctrines: Executive Privilege and Attorney-Client Privilege, both of which are currently relevant to the prospects of the Trump administration.

I am indebted for this discussion to my colleague (and former co-author) David Schultz, who teaches both law and public policy at Hamline University and the University of Minnesota Law School. David recently used his blog to address those issues. As he introduces the topic,

The limits of two privileges–executive and attorney/client–may determine the fate and future of the Trump presidency.  But if Donald Trump and his attorney Michael Cohen think that they can stand on the absolute nature of these two privileges as final fire walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.

The way in which Executive Privilege is most likely to be asserted would be an effort by Trump to quash subpoenas issued by the Special Prosecutor.  The Supreme Court considered a similar claim in U.S. v. Nixon, and that precedent isn’t helpful to Trump. (The Nixon case raised the issue whether a president had to comply with subpoenas from a special prosecutor; at that time, the object was the infamous tapes.)

Nixon asserted executive privilege, which he claimed was absolute. The Court rejected the claim,  ruling that the Privilege “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

Of course, it is the attorney-client privilege that Trump and his supporters insist was violated in the  raids on Cohen’s office, home and hotel room. However, as David writes,

Similarly, Trump and the White House might seek to invoke attorney/client privilege as a means of protecting some conversations he had either with White House Counsel or his personal attorney Michael Cohen.  Attorney/client privilege protects communication made between privileged persons in confidence for the purposes of obtaining or providing legal assistance for the client.  As the Court said in cases such as Upjohn v. United States,449 U.S. 383 (1981), this privilege encourages clients to talk frankly with their attorneys, allowing the latter to obtain the information needed to provide appropriate legal advice.  Clients would be hesitant to seek legal advice if they generally knew their conversations would not be confidential.

A well-known exception to attorney/client privilege is the crime-fraud exception.   Communications between lawyers who collude with their clients to break the law are not protected.  In this case,  the government evidently gave the court evidence sufficient to support an allegation that the crime-fraud exception applied. (There was also evidence that Cohen rarely acted as a lawyer–that he did little or no legal work, but was actually a “fixer” and business partner for Trump and occasionally others.) The mere fact that a business partner –or a partner in crime–has a law degree isn’t enough to privilege the communications.

As David concludes,

Finally, there is another privilege that Trump may invoke–the right of a president not to be  burdened by civil law suits in office because actions such as Clinton v. Jones, 520 U.S. 681 (1997).  Here, President Clinton was facing a sexual harassment suit by Paula Jones arising out of his actions as governor of Arkansas.  He argued that the civil case against him should not proceed because it would impede his duties as president.  In effect, separation of powers gave the presidency was a temporary immunity or privilege against civil lawsuits.  The Court against rejected this claim, asserting that the presidency did not provide the type of immunity Clinton asserted.

Collectively, Nixon, Zolin, and Jones stand for the proposition that presidents are not above the law.  They cannot invoke executive or attorney-client privilege to hide from criminal or civil liability.  These privileges are not absolute and at some point–which appears now–Trump and his attorney are confronting this reality, and the law will win.

It can’t happen soon enough….


  1. Trump didn’t conspire with Russia, but he did go over for a visit and had Russian hookers spoil him. Now, are there emails from Putin to Trump discussing blackmail?

    Is this why Obama/Clinton was spying on Trump?

    By the way, the world now knows that former President Bush lied to the world about WMD. Many blame Cheney because of his affiliation with Haliburton and other Deep State entities.

    His predecessor was a “democrat” but there was no hearing with a judge. Where was the international court (The Hague)?

    We also tortured men and never allowed them their legal rights. The CIA still operates black sites throughout the world to “interrogate” suspects.

    Most of our “elected puppets” are lawmakers. Why do you think the Oligarchs hire them to do their bidding?

    As I mentioned yesterday, ALEC is a bill mill which produces laws for the red states to implement. The reason we know about them is due to another Oligarch named George Soros who provided the seed money for journalists to investigate. Their entire agenda is on a website: https://www.alecexposed.org/wiki/ALEC_Exposed.

    There are few lawmakers who attend the meetings and then share their handouts. These boilerplate laws can be found in Indiana and about 23 other red states. By the way, the Koch’s owned our late supreme court justice, Antonin Scalia.

    A local group of citizens wanted to fight a 10,000 hog CAFO coming into Delaware County. Only one of them had the courage to contact me for advice. She lived a mile away and wanted to stop the farm. I told her it was a waste of time because the laws were written to favor industry.

    The group hired a lawyer but learned the hard way.

    If we expect laws to work in our favor as an extension of morality (justice), good luck. Look at who writes and rules over the laws. 😉

  2. “It can’t happen soon enough……

    Just a few words. I strong disagree. If you think Trump is a problem, you haven’t seen anything yet.

    What do you think is going to happen IF you start attacking Mike Pence and the Religious Right/Far Right IF Trump is forced to leave the THRONE?

    The failure and the CIVIC COWARDICE in not connecting Pence with Trump will be the ultimate downfall for us all.

  3. No one is above the law; including presidents of this country. The comparison between Nixon and Clinton vs. Trump are at a disadvantage in that the Nixon and Clinton administrations and Congress worked together (somewhat) within the Rule of Law while Trump’s administration and Congress are working against Rule of Law with SCOTUS support. The deck is stacked!

    When we have a body of Congress staffed primarily with Republicans who DENY Democrats access to their committees and all decision making in order to fulfill their duties as elected officials; we need to ask if there is some Rule of Law to encourage – or force – those such as McConnell and Ryan to live up to their oath of office to support and protect the United States of America and NOT one person. The revolving door on the White House with this administration regarding high level appointees, elected officials and attorneys is evidence of their escape from the lack of Rule of Law at all levels of Trump and his minions. And those who have been fired appear to be those who made attempts in vain to uphold the law and requirements of their individual office.

    “…the proposition that presidents are not above the law. They cannot invoke executive or attorney-client privilege to hide from criminal or civil liability. These privileges are not absolute and at some point–which appears now–Trump and his attorney are confronting this reality, and the law will win.”

    It not only “cannot happen soon enough…” to protect democracy, Americans and America; but will it happen in time to protect the world from Trump’s determination for nuclear war simply because he has those weapons if war at HIS stubby little fingertips”

  4. JoAnn,

    “…..while Trump’s administration and Congress are working against Rule of Law with SCOTUS support. The deck is stacked!”

    You’re right on target with that statement. Good luck when counting EVERYTHING on the RULE OF LAW! The Germans of the 30’s and 40’s and especially the intellectuals in the FRANKFURT SCHOOL learned it the hard way.

  5. AS I recall, it was Republican Richard Nixon who conspired to keep the Viet Nam war going leading up to an election. LBJ thought it was treason. It probably was.

    Republican Daddy Bush and the CIA conspired with Iran to hold on to the American hostages until AFTER Ronny Ray Gun was sworn in. What awful people.

    Daddy Bush got us into a totally unnecessary war (Iraq-1) to protect a tiny country that hates us.

    The hatred of the US from Iraq-1 led to the 911 attacks – Saudi Actors
    In response to the Saudi 911 Attack..
    Junior Bush got us into a totally unnecessary war (Iraq-2) –
    He attacked a country that did NOT attack us. Not the one that did.
    How awful is that? And dumb.

    Traitors – Probably
    War Crimes – Probably
    Any price to pay for those people – Nope

    As Todd said
    Where was the international court (The Hague)?


  6. I have given considerable thought to whether it would be better to impeach and remove 45, have him resign, or to leave him in place, but with a Democratic majority in both houses of Congress. Option number 3 seems far preferable to having to deal with President Pence. While 45 has no real belief in anything other than his own wonderfulness, Pence is a religious zealot who knows how the game is played in D.C. That ALEC legislation would start showing up on the federal level. We must absolutely avoid that.

  7. Peggy,

    I’m with you. Option number 3 is our only chance. We’ll have to go forward doing everything in our power to create a POLITICAL MIRACLE [a united democratic party].

    By the way, Black Lives Matter, last week called for a nationwide boycott of Starbucks because of their affiliation with the ADL [Anti-Defamation League]. As you all know, I’ve been trying to warn about that potential problem for the past three years. It can destroy any possibility of a UNITED FRONT within the Democratic Party.

  8. We are still a country who believes that laws, not opinions, define government actions. We can vent all that we want about the dysfunction and disgrace and unfairness that the compromised 2016 election brought to us and speculate all day about it’s end but Sheila informs us of what the applicable law is and that is what counts. It doesn’t matter what we think of Agent Orange or Pence or Congress or the Clown Cabinet they will remain damaging the country until the law prevails to stop them, and it might not. Again it’s what’s in charge now through Mueller and those are good hands. Whatever will be will be.

    In the meantime rather than bitch about things we need to do our part. We are the failures of 2016. If we had done our job that no amount of Russian meddling would have been successful.

    November. Not far away. There is much work to do to accomplish step one which is all that WE can DO. All Ds. End the Russian and Republican tyranny first. The law/Mueller might help. They might not. Let’s rely on us rather than others.

  9. Peggy; I agree with your assessment of our underlying problems regarding Trump. Clinton should not have been removed from office via his impeachment for lying about sex but…look what happened with Nixon being allowed to resign with an immediate pardon and no criminal or civil charges filed. And we supported him till his death; it galls me to think ahead to the time when Trump is out of the White House – and he doesn’t have a lifetime appointment – because we will be supporting all of that bunch and keeping them safe for decades. The photo of past presidents, their wives and Melania at Barbara Bush’s funeral is being touted as a beautiful thing about this country. No mention of Trump not there; he SAID it was his choice rather than drawing attention to him rather than our former First Lady. Egotistical assumption on his part as usual. But I remember seeing the news report of an interview with Barbara Bush saying she didn’t know how any woman could vote for him. She and Laura felt the same way. We will never know the truth of that situation but it was a relief not to see him “front and center” with past dignitaries.

    Marv; have you seen the news reports of the camera found in another Starbuck’s restroom? The restroom served men and women; several people were photographed. The arrest of those young men was in violation of their civil rights…unless the were given a religious reason for their arrest and removal. And their coffee is crappy and way overpriced.

  10. What Black Lives Matter is saying that they will have nothing to do with anyone who supports the Anti-Defamation League. The Jewish community in the U.S. didn’t vote for the [ADL] to represent their interests. The ADL represents the interests of the Likud Party [Netanyahu] in Israel and has been aligned with the Religious Right and Jerry Falwell since the late 60’s. They’ve been an active DECEPTIVE partner with the Religious Right/Far Right in their war against democracy.

    The majority of American Jews do not support the Netanyahu regime or the ADL.

  11. I’m for waiting for Mueller to act on the information he has. If evidence proves that Trump violated the law, impeach him. Until then, we should continue to hammer on our elected officials to protect the Constitution, work towards the Fall elections, and get out the vote.

    Letting a fear of Pence guide your thinking, decisions, and actions is, well… asinine.

  12. In light of the lack of a conclusion, how does Todd know that there was no Trump-Russia connection? What we are currently facing is a result of our electoral sloth and intellectual laziness to know the facts, the law and how our government is supposed to work within the Constitution.

    Criminals at work is always an unsavory business….

  13. as-i-nine (as’e nin’) adj. [< L asinus, ass] like an ass; stupid; silly—as'i-nine'ly adv.—as'i-nin'i-ty
    (-nin'e te)
    ~Webster's New World Dictionary

    I didn't realize it was SILLY to be concerned about Mike Pence. I apologize for my ignorance.

  14. “No one is above the law…” Maybe that is true, if law in this case means only the intent of the written statutes; but maybe not, not even in this case, if the intent of law also means the intent of loopholes written into those statutes.

    But if law in reality, as most of us experience the law, also means the outcome of processes which we are taught to call “legal”, then it is indeed true to concede sadly that:

    Wealth is nine-tenths of the law.

  15. The law is one thing – Clout (as we used to say in Chicago or influence) is another. Clout comes to the rescue when the Executive, Judicial and Legislative are stacked in favor of the ruling class. Todd’s example of the hog farm above is good example of this.

    Trump (aka Agent Orange) follows French King Louis XIV by legend, Louis XIV supposedly said: “I am the state” (l’état, c’est moi).

    As far a Russia Connection: Remember when Shapely Sarah Palin said on 11 September 2008 appearance on ABC News on Russia: “They’re our next-door neighbors, and you can actually see Russia from land here in Alaska, from an island in Alaska”. Sarah Palin did not say ‘I can see Russia from my house.’ That line originated with an SNL spoof.

    A lot of people laughed at Sarah. Now we have MSDNC’s Rachael Maddow, and Chris Matthews among others on CNN, who see Russians everywhere infecting America. It is like the Army-McCarthy Hearings of the 1950’s. They are everywhere, everywhere.

    All this hyped up, manufactured outrage of Russian interference in our election, that ignores all the coups, assassinations and in some cases out right invasions of sovereign countries by AmeriKa.

  16. Deep state, ALEC and bigotry are red meat for liberals, just as supposed Second Amendment rights are to the opposition, but I think we are spinning our wheels on the only real issue up for grabs, i.e., who gets to exercise political power – Democrats or Republicans. Sure, discussion of the issues, putdowns of the Kochs and Mercers, party infighting etc. are welcome, but that all comes to naught if Republicans control our government (think taxes, the environment, the corruption of Trumpism, the loss of our democracy etc.).

    No political party can be thought of as perfect considering the checkered population such a party represents, of course, but as I often write, if you think the Democratic Party is bad, take a look at the Republican Party – especially since Citizens United gave judicial approval to that party’s purchase by Big Money. Truth be told, there is no Republican Party in existence these days; rather there is a Big Money Party with their lackeys masquerading as Republicans with the colossal gall to pretend they are the party of Lincoln and Eisenhower. So let’s discuss the roles of the parties for this fall but save our vitriol for the Big Money Party, who richly (pun intended) deserve it.

  17. Winning militaries fight each battle and in the right order. Winning the war results from that.

    This is a political war but the same applies. We have to win the battles in the right order.

    Mueller’s might be the first but we have no control over that. The first battle that can control is in Nov in the voting booths.

    Our objective for that battle ought to be to fire as many Republicans as possible.

    Then we’ll plan the next one.

  18. Actually Mueller’s battle before ours might be the wrong order. His odds of success improve after we win ours.

  19. Trump has a survival strategy that neutralizes or eliminates the rule of law. Why would he spend each and every day playing to “the base” unless he plans on bringing them into the streets the day he concludes he has run out of options? Why preach such hate-filled racism, bigotry and divisiveness to America’s best-armed, least rational people unless he has a purpose in mind for using them? Is that accidental?

    Is it coincidental that he mostly employs a communications medium that allows him to call out the goons a few seconds after he hears the FBI is coming for him? Add the power of his well-armed street people to the support he is almost certain to receive from Congress and the Supreme Court and you have a force that supersedes the rule of law. If he doesn’t personally demand violence to vindicate and protect himself, Hannity and Limbaugh will do it for him. Yes, he looks and sounds like a cretin, but what’s our backup plan if it turns out he’s not?That leaves only the Army to arbitrate. Will Mattis support Trump or America? We may know the answer sooner than we would like.

  20. Trump has lost some of his base, including a double digit loss among his evangelical base. He can lose more of that support as more of his personal and business failings became known. Special elections across the country in the most unlikely districts have gone against Trump’s candidates. Issues and candidates’ personal attributes do make a difference to voters.

  21. I think there is great widom in Mueller’s gentle pressure relentlessly applied. Trump must think that he’s in control until he’s not.

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