CDZ Attorney-Client Privilege: What it is and what it is not

[usmbguest5318]

For some reason unbeknownst to me, folks of myriad stripes are "on" about attorney-client privilege (ACP). The only reason I can fathom is Trump's sophistic lamentation that ACP is dead; however, I don't really think Trump has any idea of what ACP is, and what be its breadth and limits. I'm more certain that most folks using that term haven't a clue of what it is and what it is not.

ACP is a concept that, while not by any means new (it dates to the Roman Empire), is the notion that certain communications between an attorney and his/her client be shielded from the discovery process. In the U.S., United States v. United Shoe Machinery Corp is the SCOTUS case in which ACP's applicability was defined. In that case, the justices set down the following requirements of to which sorts of communications and two whom ACP applies:

1. Person who asserts privilege must be the actual client or must have attempted to become a client of the attorney at the time information was disclosed.
2. Person to whom the communication was made must be a certified attorney.
   • This is important because if the same information/communication was made to someone other than the client's attorney, it loses its privileged status.
3. Communication must occur solely between the client and attorney.
   • This could be pretty important in Trump's case because Trump swore in a deposition that he doesn't use email, which means he necessarily must either conduct his communications in person, on the phone, by his own hand, or he must involve third parties to compose and possibly receive communications to and/or from his attorney.
     
     What this goes to is happenstances like other people being in the room when a communication is made, a communication made on speaker phone, other people brought into or made privy to the discussion, etc.
4. Communication must be made as part of securing legal opinion and not for purpose of committing a criminal act.
   • The importance of the first part of this requirement is that not anything and everything one discusses with one's attorney is privileged. For example, business strategy or operational advice, rather than legal advice, is not protected. Legal information is not protected. Political campaign strategic, operational and tactical discussions too would not be protected.
   • The second part of this requirement is pretty self explanatory.
5. Client is the only person who may waive the privilege.
   • A client can do this tacitly by, say, inviting someone else into the room or asking an aide to send or receive an email, text message, "tell 'my attorney' such and such," etc. A taict waiver occurs also when giving testimony and the client answers a question about what would otherwise be privileged content rather than objecting to the question.
   • A client can, of course, explicitly waive the privilege with regard to any given communication.

With that background, one thing I've noticed over the past year or two is that Trump seems to think that criminal law works the same as tort law. It doesn't.

• A material part of what one's tort lawyers do is figure out ways to "get around" various provisions in the tort code. With criminal law, the way to "get around" the law is to not commit an actus reus (or something that looks like one), a culpable act, and not to have mens rea, a guilty mind, intent (or do something that smacks of having intent to commit a crime).
• In tort matters, the many of one's legal opponents won't have much ability to produce documentary evidence. Subpoena or not, if one says one doesn't have it, nobody is going to be able to get a warrant authorizing the search of one's home, office, etc., unless there comes about clear evidence that one has lied under oath by asserting one hasn't content that was subpoena'd, but such a lie would be a criminal matter, which is how and why a warrant can then be obtained.
  
  In criminal matters, one's opponent is always the state, and the state can and most certainly will compel one to provide evidence, and the state'll do it by obtaining a search warrant and going to get whatever documentary or tangible evidence it's looking for and that it has due reason to believe one has. The state uses warrants when it has good reason to believe the witness may not comply fully with a subpoena or may destroy evidence upon suspecting it'll be subpoenaed or obtained via a warrant.
• There are other key differences:
  • Punishment -- I suspect Trump's aware of this difference.
  • Burden of Proof -- I suspect Trump has no awareness of this difference
  • Protections -- Trump's probably aware of some of these but not all of them.
  • Ignorance is no excuse -- I don't know whether Trump would inove ignorance, but he's ignorant enough that me might.

I think too that Trump thinks the DoJ and FBI lawyers and prosecutors, along with the WH attorney, are "his" attorneys and that part of their job is to, as with his personal attorneys, protect him and do his personal bidding. Nothing could be farther from the truth. FBI, WH and DoJ attorneys' job is serve the country and the Office of the President, but not the person who happens to occupy that office. One might think of the distinction thus: those attorneys and officials serve Trump only because he is POTUS and in his capacity as POTUS, not because he is Trump the man/politician and in his capacity as a citizen who wants to see a given course of criminal investigation/prosecution undertaken.

Insofar as Trump is not a particularly nuanced thinker, except insofar as he can finagle something to suit his personal ends, I'm sure the subtlety of the distinction goes right over his head. Accordingly, I think that's part of why Trump has remarked that ACP is dead. How criminal law works and is enforced just isn't at all like civil law, but he sure thinks it is or should be.