Firing Mueller Is Only the First Step

*This piece was originally published in The Regulatory Review.

Firing Mueller would be extreme, but the next step would be even more perilous for the President.

I agree with much of what my friend and colleague Richard Pierce has written in his essay, “The Easy Path to Firing Mueller,” but I partially dissent because Pierce, probably like President Donald Trump, has not figured out what comes next.

Given the manner in which the President has reached many decisions, the firing is likely to come when special counsel Robert Mueller steps over an unknowable line that the President has drawn, and the President decides that he has gone too far.

When President Richard Nixon in 1973 ordered the firing of special prosecutor Archibald Cox—who had been appointed to investigate the Watergate break-in—Cox chose not to fight the President. But Ralph Nader and several members of Congress brought suit and won a declaratory judgment from U.S. District Judge Gerhard Gesell. Judge Gesell held that Cox’s firing in the Saturday Night Massacre was unlawful because the applicable regulation authorizing the appointment of a special prosecutor permitted the firing only if Cox had been guilty of “extraordinary improprieties,” which no one claimed had happened.

The regulation now is a little different—removal of a special counsel is permitted only “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause”—and Mueller is much more of a fighter than Cox. I expect that Mueller would be in court the next day, seeking reinstatement, and with a good chance of winning, certainly in the lower courts. Moreover, since the regulation is one that the U.S. Department of Justice (DOJ) chose on its own to issue, the courts would be much less sympathetic to a separation of powers claim than if Congress were to impose a good cause limit on removal.

Meanwhile, the President, and those at the DOJ carrying out his bidding, will have to figure out their next move. Will the President appoint someone to replace Mueller? If so, who? And what assurances will that person want before putting his or her neck into a Trumpian noose?

Although Congress does not have a formal role in the selection of a replacement, many members on both sides of the aisle would almost certainly insist on holding a hearing and demand that whoever is calling the shots at the DOJ explain what happened and whether the Mueller replacement would continue an independent investigation. The President may have developed a particular dislike for Mueller, but he would almost certainly harbor the same enmity toward Mueller’s successor, especially if the special counsel’s core staff members remains in place, as they did after the Saturday Night Massacre.

The President has another option, which is even more explosive. The Russia investigation exists because the acting Attorney General, Rod Rosenstein, decided to use the DOJ regulation that authorizes the appointment of special counsels and gives them a good measure of independence. President Trump—or someone at the DOJ acting at his direction—has two more or less interchangeable choices: withdraw the order appointing this special counsel, or revoke the regulation authorizing appointments of any special counsels, both of which would have the effect of abolishing the office.

But that move alone would not end the Russia probe. Presumably, all of the pending cases and all of the open investigations would revert to the criminal division or perhaps the national security division at the DOJ, either with the former Mueller staff or without them. The investigations would continue, unless the President tried to order the DOJ to dismiss the pending indictments and close down all further inquiries.

But if firing Mueller would cause a firestorm, abolishing the office and ending the investigation would be the true nuclear option. And as Professor Pierce has pointed out, if that scenario were to play out, the 2018 election would be even more important to assure that democracy and the rule of law continue in this country.

Alan B. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law at George Washington University Law School. He was counsel for the plaintiffs in Nader v. Bork, in which the U.S. District Court for the District of Columbia ruled that the firing of Archibald Cox in the Saturday Night Massacre was unlawful.

Affirming the Rule of Law

Firing Deputy Attorney General Rod Rosenstein or any investigator in the Russia probe without cause would clearly create a constitutional crisis. We must get ready to respond now. That’s why I asked the Federalist Society to join us “in a united effort to avert a constitutional crisis relating to Special Counsel Robert S. Mueller’s investigation into Russian meddling in the 2016 presidential election” in a letter, covered by ReutersThe Hill and Above the Law.

And today over 400 ACS law students pledged “to ensure nobody is above the law” if Trump attempts to undermine Special Counsel Mueller. “If the Special Counsel or Deputy Attorney General is fired, we will find our voice and use it,” stated the student letter.

President Trump and his enablers have engaged in a nine-month long smear campaign against the inquiry into Russian meddling in the 2016 presidential election. The aim of the campaign against the Mueller investigation – the most successful attack against officials in the executive branch since Joe McCarthy – is clear: obstruction of justice. We are watching a slow-motion Saturday Night Massacre.

In a recent editorial, appropriately titled “The President Is Not Above the Law,” the New York Times concluded that “if the president does move against the investigators, it will be up to Congress to affirm the rule of law, the separation of powers and the American constitutional order.”

Rule of law is central to our mission. ACS members need to play a leadership role in defending our system of checks and balances.  In anticipation of some nefarious action by the White House, ACS is prioritizing this aspect of our work.

Help us organize your community. Now is the time to take a stand.

Nobody is Above the Law, Not Even the President

by Sarah Mahmood, Stanford Law School ‘19, ACS Co-President 2017-2018 and Sophia Carrillo, Stanford Law School ‘18, ACS Co-President 2016-2017, Next Generation Leader

The weekend of January 27, 2017, we didn’t do any of our constitutional law reading. Instead, we swapped the library for the airport for a different kind of legal education. As we sat in circles on the airport floor, holding makeshift signs affirming our support for love and justice, we joined the crowd in its many choruses. And after “No bans, no walls!” came another refrain, one that reminded us of why we had applied to law school in the first place—“Thank you, lawyers!”

Punctuated by claps, the chant was a moving tribute to the lawyers who had worked all night to free those detained at the airport as a result of President Trump’s travel ban. It was a humbling moment, one that reminded us that even when it seemed like everything was falling apart, we were not helpless, but there to help put things back together—that as lawyers and law students, we had both the immense responsibility and the incredible privilege to pursue justice and uphold the rule of law.

We have written this letter to carry out that duty, which starts not with passing the bar, but on our first day in the classroom. As our elected leaders once again threaten to undermine our democracy, we instead take on the charge to protect our country. Nobody is above the law, not even the President—and as current law students and future lawyers, we promise to safeguard this founding principle of our nation.

State Prosecutions After Trump Pardons - Mueller's Plan B?

*This piece was originally posted on Crooks and Liars.

"There's no limit to what can be accomplished if it doesn't matter who gets the credit."

Versions of this team-first principle have been attributed to, among others, Benjamin Jowett, Father Strickland, William T. Arnold, Harry Truman, Ronald Reagan, Charles Edward Montague, and Edward Everett Hale.

It might not be possible to say conclusively who deserves credit for this insight - original-authorship credit, that is - but it is pertinent to Special Counsel Mueller's investigation, especially when his investigation focuses on Trump, his family, and their businesses.

First, recall that, during an interview with the New York Times, approximately three months after Mueller's appointment in May 2017, Trump identified his non-Russia-related finances and family's finances as a "red line" Mueller should not cross:

[NYT]: Last thing, if Mueller was looking at your finances and your family finances, unrelated to Russia — is that a red line?

[NYT]: Would that be a breach of what his actual charge is?

TRUMP: I would say yeah. I would say yes.

It's noteworthy that the Times interviewers framed the question as "...finances finances, unrelated to Russia..." It appears they assumed that Russia-related finances are in bounds. This assumption seems questionable: would Trump actually permit or tolerate Mueller's investigating any aspects of his or his family's businesses?

Trump didn't allow the public to see his tax returns when he was a presidential candidate; he doesn't permit disclosure of them now so the public can assess, for example, how he benefits from the recent changes in U.S income-tax laws. It thus seems probable Trump would oppose a federal prosecutor's seeking to examine his Russia-related finances, even if Russian nationals or the government were to disclose publicly any prior or planned investments in Trump businesses.

Trump declined to say specifically whether he'd fire Mueller if he crossed that red line: "I can’t, I can’t answer that question because I don’t think it’s going to happen."

Regardless, Trump identified a red line and hasn't apparently erased or blurred it. And the actual location of that line in relation to Trump family finances unrelated to Russia is at issue again:

Special counsel Robert Mueller's interest in Jared Kushner has expanded beyond his contacts with Russia and now includes his efforts to secure financing for his company from foreign investors during the presidential transition, according to people familiar with the inquiry. This is the first indication that Mueller is exploring Kushner's discussions with potential non-Russian foreign investors, including in China.

Assuming Mueller is in fact interested in Kushner's finances beyond those specifically related to Russia, he also might be interested in how Ivanka Trump's business interests have advanced in China (recently buttressed by favorable intellectual property rulings there). He might also attend to the Trump Organization's recent negotiations over business development in India, led by Donald Trump, Jr..

If Mueller is investigating any of these matters - which is unknowable so long as his investigation remains largely leak-free - he's certainly been alerted to Trump's trigger, and the trigger of his defenders. Mueller's office has recently issued a new indictment concerning Russian election interferencea superseding indictment of Paul Manafortand a separate superseding indictment of Manafort and Rick Gates. The Special Counsel also has secured additional guilty pleas, from Rick Gates, as well as an identity-thief and a lawyer. As these developments have been announced, Mueller also might have noticed that Trump defenders are calling more loudly for presidential pardons of anyone in whom Mueller might be interested.

By this point, it seems fairly clear that Trump could issue presidential pardons to anyone targeted by Mueller (perhaps including Trump himself). Such pardons would protect the recipients from federal prosecution or - if already federally convicted - relieve them of fines and/or prison sentences. And, it doesn't require statistical expertise to predict confidently that Trump's daughter, son, and son-in-law are in the "high-probability-of-presidential-pardon" cohort.

However, as noted previously here, there are legally significant limits to Trump's pardon power. Most importantly for this discussion, he can't pardon people who've been charged or convicted under state criminal laws, even if their conduct amounts to a crime under federal law.

State Criminal Prosecutions After Pardons Under the "Dual Sovereignty Doctrine"

State law-enforcement officials (attorneys general and county prosecutors, usually), acting under State criminal laws, may prosecute conduct that is criminal under State law, even if that exact same conduct, by the exact same actors, has been presidentially pardoned under federal law. For example, under the "dual sovereignty doctrine," a homicide might be a federal hate crime and a state-law homicide. The perpetrator of the hate-crime could be presidentially pardoned, so that the crime could not be prosecuted under federal criminal civil-rights statutes, but the homicide could still be prosecuted as an ordinary murder under state law.

Presidential pardons for Trump family members could give them no protection against state civil suits or criminal prosecution for presidentially pardoned conduct that also violates state laws. This is why reports such as this one, of Mueller's office sharing information with at least one state Attorney General (Eric Schneiderman of New York), are significant.

AG Schneiderman has pursued Trump before: a lawsuit by his office (one of a number of such suits) helped extract $25 million from the Trump organization for former students of Trump University.

Mueller, therefore, could hand off to Schneiderman the fruits of his investigation of Manafort, assuming there is a basis in New York law to investigate and sue or prosecute him. Similarly, Mueller could hand off other targets to Schneiderman - assuming, again, there exists a basis in New York law for action by Schneiderman.

There appears to be such a basis in New York. In fact, there might be multiple bases.

New York's AG has substantial powers under state law to sue civilly and/or prosecute a variety of financial crimes, including those involving fraud. Schneiderman may commence investigations, for example, under the Martin Actthe Executive Law, and the General Business Law. These three laws afford him jurisdiction to pursue fraud involving securities, real estate, and other forms of business transactions.

Not all of these laws might apply specifically to Manafort (or to any or all Mueller's other targets). However, it appears that several of the transactions alleged in Mueller's February 22 superseding indictment of Manafort and Gates would fall within Schneiderman's jurisdiction for criminal prosecution.

Beginning at page 20 of the superseding Manafort/Gates indictment, under the heading, "The Financial Institution Scheme," paragraphs 26-44 allege fraud involving the procurement or use of loans on real estate situated in New York. The description of the scheme begins here:

26. Between in or around 2015 and the present, both dates being approximate and inclusive, in the Eastern District of Virginia and elsewhere, MANAFORT, GATES, and others devised and intended to devise, and executed and attempted to execute, a scheme and artifice to defraud, and to obtain money and property, by means of false and fraudulent pretenses, representations, and promises, from banks and other financial institutions. As part of the scheme, MANAFORT and GATES repeatedly provided and caused to be provided false information to banks and other lenders, among others.

27. ...MANAFORT and GATES defrauded the lenders in various ways, including by lying about MANAFORT’s and DMI’s income, lying about their debt, and lying about MANAFORT’s use of the property and the loan proceeds...

Paragraphs 28-44 allege various fraudulent acts to procure loans on residential real estate located in Brooklyn, Manhattan, and Bridgehampton - property physically sited within Schneiderman's jurisdiction. The allegations don't name the lenders that supplied the funds on these properties, but they also could be located within New York. From the standpoint of a state civil investigation or criminal prosecution for fraud in New York, it's probably sufficient that the properties themselves are located in the State.

Schneiderman criminally prosecutes residential mortgage fraud, including what appear to have been conspiracies to commit such fraud. See, for examples, this case, which involved "submitting refinance applications which contained false information," and this case, which involved "preparing false documents used to obtain residential mortgage loans."

Thus, Manafort's recent statement about vigorously defending himself in lieu of pleading guilty (perhaps intended to remind Trump of the value of pardoning Manafort), ultimately might be of limited value to him if Mueller hands off the prosecutorial baton to Schneiderman. Presidential pardons of others, including Jared Kushner, Ivanka Trump, and Donald Trump, Jr., similarly might afford only limited legal protection to them.

In short, the conduct of the Trump family, and the conduct of other targets of Mueller, might be productive investigative terrain for Schneiderman for civil suits, criminal prosecutions, or both, because it appears neither Mueller nor Schneiderman will care who gets the credit.

Russian Indictment and Extradition

On February 16, Special Counsel Robert S. Mueller III unsealed a 37-page indictment charging 13 Russian nationals and three entities principally with conspiring against the United States to infiltrate the 2016 election through a sophisticated and complex scheme that included the use of stolen identities of American citizens to surreptitiously influence and infiltrate social media sites such as Facebook, Instagram and Twitter. Although each United States intelligence agency has definitively stated, without equivocation, that Russia meddled in the 2016 presidential election, those agencies were constrained to explain how Russia did so with any detail because of legal restrictions on classified material. Yet for the first, time, this indictment provides extensive detail about how one aspect of this Russian meddling in the 2016 election occurred.

This indictment, however, likely will never see the inside of a courtroom. None of the defendants have been arrested and, assuming that all 13 of them remain in Russia, the United States is essentially powerless to extradite them and bring them to justice.


International extradition is a complex web of laws, treaties, and agreements. For the most part, the extradition of an individual residing in (or visiting) one country (the Resident Country) to another country that has charged that individual with one or more crimes (the Extraditing Country) is governed by treaty. Most democratic countries have treaties with each other to extradite individuals charged with crimes in another country as long as the two countries share “dual criminality,” which is the principle that the charged conduct violates a criminal law in both countries.  There are, of course, additional exceptions, such as whether an individual is charged with a crime that could carry the death penalty; countries that don’t have the death penalty generally will not extradite anyone who may face the death penalty based on the charges against him or her. Once extradited, the doctrine of “dual sovereignty” prohibits a country from adding any additional charges to the original indictment.

In the United States, the extradition process goes through the diplomatic channels of the Department of State.  Although each treaty may contain different protocols, the typical first step is to submit a provisional arrest warrant (PAW) to the Resident Country to request the arrest of the individual pursuant to charges in the United States. If the Resident Country executes the arrest, then the individual may challenge the extradition process in the courts of the Resident Country prior to extradition.  Once the Extraditing Country makes a final decision to extradite the individual pursuant to its own procedures and regulations, the Resident Country relinquishes any control or involvement in the ultimate prosecution of the individual in the Extraditing Country.

A number of countries, however, including, for example, France, Germany and Japan, will not extradite their own citizens for prosecution in other countries regardless of the crime alleged. In those situations, or in the event that there is no extradition treaty or agreement between the Resident Country and the Extraditing Country, the Extraditing Country may file a “red notice” with Interpol, which lodges the arrest warrant in an international database that flags an individual charged with a crime whenever he or she crosses an international border. This is often done while the charges remain under seal so that the charged individual is not aware of the pending charges against him until he is flagged at a border crossing. If that occurs, the Extraditing Country has some time – often 60 days – to initiate the extradition process and the charged individual proceeds through the extradition protocols of the court system in the country where he or she was arrested under the process described above. (Of course, if the charged individual travels to the Extraditing Country voluntarily, that individual can be arrested and prosecuted without the need for extradition.)

Extradition with Russia

Perhaps not surprisingly given the tenor of diplomatic relations between the two countries, the United States and Russia do not have an extradition treaty. In addition, Russia is one of the countries mentioned above that will not extradite its own citizens. So, assuming that the 13 defendants charged in Mueller’s recent indictment remain in Russia, there is no possibility that they will be extradited to the United States. In 2013, as but one example where this process occurred, the U.S. Attorney’s Office for the Southern District of New York charged Alimzhan Tokhtakhounov – who was better known for being the alleged mastermind of the bribery scheme designed to fix the pairs figure skating competition at the 2002 Salt Lake City Olympics – with leading an international racketeering, money laundering and gambling enterprise. American prosecutors alleged that Tokhtakhounov was a “vor,” which means “thief-in-law” and is the equivalent of a mafia boss in Russian organized crime circles. Although nearly all of Tokhtakhounov’s co-defendants were arrested, including some who lived in Trump Tower, Tokhtakhounov continued to live openly and notoriously in Russia.  There, he sat down for interviews with American media outlets and even appeared as a guest at the 2013 Miss America pageant presided over by none other than Donald Trump.

In recent years, Russia has increasingly made extradition difficult even for Russian nationals arrested on American charges in other countries that do have extradition treaties with the United States. The first high profile example of this was the case of Viktor Bout, a Russian national who was arrested in 2008 on terrorism charges out of the Southern District of New York. Russia intervened on Bout’s behalf and argued to the Thai courts that the charges were political in nature and that, as a result, Bout should not be extradited to the United States. Initially, the Thai criminal court agreed with Russia and denied Bout’s extradition. The United States appealed that decision and ultimately, more than two years after his arrest, the Thai high court reversed the lower court’s ruling and allowed for Bout’s extradition to the United States, where he was tried and convicted of conspiring to kill Americans, among other charges.

More recently, Russia has developed a new tactic to prevent its citizens from being extradited from other countries to the United States, particularly in hacking cases. In several of those cases, after a Russian citizen has been arrested pursuant to a PAW from the United States in a neutral country, Russia has itself filed charges against that same individual and requested extradition back to Russia. Although the Russian charges pale in seriousness to the American charges and Russia’s extradition request post-dates that of the United States, this tactic can be effective because countries generally prefer to extradite individuals to face charges in their own country rather than another foreign country.

The Mueller Indictment and Extradition

With this backdrop, and particularly considering the political nature of the charges in the Indictment, one can surmise that Mueller understood that the only way to arrest and prosecute any of the 13 defendants would be to arrest them in the United States. Although the Indictment details travel to the United States by some of the defendants – albeit using fraudulent means in several instances – Mueller and his team likely recognized that future American travel was unlikely in light of the overt nature of his investigation into Russian meddling in the 2016 election.

Mueller could have chosen to file the Indictment under seal, lodged a red notice, and waited for any of the 13 defendants to travel outside of Russia, a far more likely scenario than any of them traveling to the United States. But even assuming the Russian government did not alert the defendants to the red notice against them – which is unlikely – Mueller and his team would be staring down the barrel of a prolonged extradition proceeding against non-governmental actors that would usurp time and resources without any guarantee of success.

So why unseal an Indictment charging 13 people with interfering in the 2016 election without any legitimate hope of bringing them to justice? I see two principle reasons.

First, this Indictment explains in great detail the extensive and sophisticated nature and scope of Russia’s “information warfare” that infiltrated the 2016 election, which had not previously been publicized. Part of the Special Counsel’s mandate is to investigate and uncover any and all Russian involvement in the 2016 election, and this Indictment, which provides the first definitive explanation for at least one way that Russia meddled in the election, will serve as the document of historical record as to this aspect of Russia’s intervention in the election. That is an important public service, regardless of whether anyone ultimately goes to jail because of it.

Second, Mueller has been under constant attack from the President and his allies about the legitimacy of his investigation. The evidence outlined in this lengthy Indictment, explained in unusually painstaking detail, demonstrates for the first time in black and white that Russia did, in fact, meddle in the 2016 election. And while there are no allegations of a conspiracy to do so with any Americans (more commonly referred to as “collusion”), those who refuted the intelligence agencies’ unequivocal declarations that Russia interfered in the election no longer have a valid basis to do so. Mueller has enhanced the legitimacy of the Special Counsel’s role and mandate through these charges, and the focus now moves from whether there was interference by Russia in the 2016 election to whether and to what extent any Americans knowingly conspired with Russians to do so. To Mueller, that is undoubtedly a worthy cause.

*Daniel S. Goldman spent 10 years as an Assistant U.S. Attorney for the Southern District of New York, where he was Deputy Chief of the Organized Crime Unit and Senior Trial Counsel in the Securities and Commodities Fraud Unit.  He has provided legal commentary on MSNBC and RNN/FIOS1.  

Mueller And The Limits Of Attorney-Client Privilege

February 9, 2018

*This piece was originally posted on Crooks and Liars.

Last Friday, the Republican majority of the House Permanent Select Committee on Intelligence released “the Nunes Memo.” Weighing in at four pages, the Memo attacked the justification for a U.S. counter-intelligence investigation of Carter Page. It implied that the Trump-Russia investigation led by Special Counsel Robert Mueller was purely political and legally groundless. Consequently, large swaths of the media, legal and political classes, and public are again focused on the fate of Mueller.

There are comprehensive refutations of the memo’s attack, including this one. The best refutation comes from the Nunes memo itself, which says this in its last paragraph: “The Papadopoulos information [that Russia had dirt on Hillary Clinton] triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok.”

Nevertheless, Trump claims the Nunes Memo vindicates him. Urged on by his allies in Congress, on FOX News, and in other right-wing cheering sections, Trump apparently wants to use the memo to halt the investigation - a process that probably would begin with firing Rosenstein.

Rosenstein draws Trump’s ire for reasons beyond merely appointing Mueller to run the Trump-Russia investigation, which Trump calls “a witch hunt.” Rosenstein also was one of several Justice officials who at one time or another approved procurement and/or renewal of the FISA warrant to investigate Carter Page’s ties to Russian intelligence.

Until he’s dismissed, however, Mr. Mueller will press on, in part because Rosenstein appears to be satisfied with Mueller’s performance. Most recently, in Paul Manafort's suit to nullify his indictment, the Department of Justice filed a motion to dismiss the suit that explicitly supports the work of the Special Counsel.

As Mueller moves along, he will probably encounter claims from the persons of interest in his investigation - e.g., Jared Kushner, Paul Manafort, Donald Trump, Jr., Rick Gates, Hope Hicks, and President Trump himself - that some of their communications are protected by attorney-client privilege, or executive privilege, or both. One or more of them probably will claim attorney-client privilege because, at various times, lawyers have been present and involved in their discussions and interactions concerning Trump’s engagement with Russians during the campaign.

Indeed, Donald Trump, Jr., has already refused to reveal to House investigators certain parts of his communications about his meeting with Russians at Trump Tower in June 2016: “In closed-door testimony before the House Intelligence Committee, Trump Jr. invoked attorney-client privilege to withhold details of a conversation with his father about that Trump Tower meeting with a Russian lawyer. The reason: Legal counsel happened to be on the call.”

More recently, Mueller apparently has become interested in another discussion about the junior Trump's June 2016 meeting with Russians. Mark Corallo, a former spokesman for Trump's private legal team, allegedly witnessed Hope Hicks engaging in conduct Corallo feared might itself be criminal: "Ms. Hicks said during the call that emails written by Donald Trump Jr. before the Trump Tower meeting - in which the younger Mr. Trump said he was eager to receive political dirt about Mrs. Clinton from the Russians - 'will never get out.' That left Mr. Corallo with concerns that Ms. Hicks could be contemplating obstructing justice, the people said."

Observers have noted that, while lying to the press is not itself a crime, ginning up a lie for the media or ordering the White House Counsel to fire Mueller might show evidence of the “corrupt intent” necessary to prove an obstruction-of-justice charge against Trump or others in his circle.

Even if these communications were directly to lawyers, or with lawyers present during the communication, attorney-client privilege might not bar Mueller from obtaining them. More significantly, the presence of lawyers in the room, or even the inclusion of lawyers in the discussion, might not bar Mueller from using the communications as evidence to indict and prosecute any of the people in whom Mueller is interested.

Attorney-Client Privilege - Its Basic Purpose and General Limits

The attorney-client privilege shields from disclosure confidential communications between a person and an attorney, where, essentially, the communication is for the purpose of procuring legal advice and intended to remain confidential. The purpose of the privilege is to promote uncensored communication between client and attorney, so the attorney can develop the best legal advice and strategy for the client and the client can develop an accurate appreciation of her legal situation and decide how best to respond to it.

The privilege, however, is not unlimited - a legal reality Donald Trump, Jr., might not understand. First, as many clients unhappily learn, it doesn’t cover all their communications on every subject with their lawyers. There are policy-based exceptions to its application. Second, a client can intentionally or unintentionally waive the protection of the privilege, often by failing to keep the communication confidential, but by other conduct as well.

Challenging A Claim of Attorney-Client Privilege

When a witness or target invokes attorney-client privilege, Mueller might try to neutralize the privilege if he considers the communication important to the investigation. If he objects to a claim of privilege, he’ll ask the judge presiding over his grand jury to conduct an “in camera” examination of the purportedly privileged communications - an examination by the judge in chambers that is closed to the public. The privilege-claimant will have to disclose the communications to the judge, who will decide whether they are privileged or whether they must be revealed to Mueller and may be used as evidence.

Watch for claims of privilege to be challenged by Mueller on four specific bases, among others: the “crime-fraud exception”; the non-confidential-communication waiver”; the "at-issue waiver"; and another pertinent exception that doesn’t have a succinct name. For want of a pithier label, let’s call it the “Bill Clinton/Ken Starr Exception.” The last exception might defeat a claim of executive privilege, as well as a claim of attorney-client privilege, but that's a topic for another day.

The "Crime-Fraud Exception"

Under the crime-fraud exception, attorney-client privilege doesn't apply to communications between a client and attorney for the purpose of committing, continuing, or advancing an illegal or fraudulent act. "The so-called “crime-fraud exception” removes the protection of the attorney-client privilege for communications concerning contemplated or continuing crimes or frauds. This exception encompasses criminal and fraudulent conduct based on action as well as inaction."

For example, if a person or persons in Trump’s circle consulted an attorney on how to lie to the Special Counsel, his lawyers, or his investigators about matters under investigation, in order to criminally obstruct the investigation, they could not claim protection of the attorney-client privilege for that communication. The communications with the attorney about how to obstruct the investigation very likely could be obtained by Mueller and used as evidence of obstruction.

The "Non-Confidential-Communication Waiver"

A critical component of a protected attorney-client communication is that it is made confidentially and intended by the client to remain confidential:

To remain privileged, a communication must be made in confidence and kept confidential. The test is (1) whether the communicator, at the time the communication was made, intended for the information to remain secret from non-privileged persons, and (2) whether the parties involved maintained the secrecy of the communication…..Typically, disclosure in the presence of non-privileged persons destroys confidentiality and prevents the privilege from attaching.

Privileged communication only occurs between the attorney and "the client." If “non-clients” are present during attorney-client communication, then confidentiality might be waived and the communication might not be privileged. (Note, however, that persons who aren’t the client or attorney can be present without destroying confidentiality, if they’re employees of the lawyer, such as associates, paralegals, or investigators working on the client's matter, or they're necessary to the communication, such as translators.)

For example, suppose multiple members of the Trump inner circle had a discussion in the presence of an attorney about how to account to Mueller for Donald Trump, Jr.’s meeting with Russian representatives in Trump Tower. Their conversation probably would not be privileged unless all of the participants were represented by the attorney present (unlikely, because of potential conflicts) or they each had their attorneys present during the conversation.

It's notable that the crime-fraud exception also might apply if they discussed how to criminally obstruct the investigation. However, even if they only discussed innocent ways to respond to Mueller's inquiries, the court might not find their communications confidential. If they're not confidential, then they can't be privileged, even though an attorney was present and participating and even if the attorney was representing at least one person present.

The “At-Issue Waiver”

“The attorney-client privilege may be deemed waived when the privileged communication is put 'at issue' in litigation. This occurs when the client affirmatively puts privileged communications at issue, for example, by alleging that she relied on the advice of counsel, misunderstood an agreement, or diligently investigated a claim.”
For example, if one or more of Mueller’s persons of interest claim their lawyer(s) told them to do or say something relevant to the Trump-Russia interactions or investigation, Mueller could assert that the attorney-privilege has been waived and ask the court compel them to disclose their communications with their attorney(s).

The "Clinton/Starr Exception"

This exception arose out of an attempt to quash a grand subpoena issued by Independent Counsel Starr in his investigation of Bill Clinton. In early 1998, Starr's jurisdiction expanded beyond financial transactions involving Clinton when he was governor of Arkansas to include "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law in connection with the civil lawsuit against the President of the United States filed by Paula Jones." Along the way, Starr issued a subpoena to Bruce Lindsey, who was Deputy White House Counsel and Assistant to the President, to compel Lindsey's testimony before Starr's grand jury.

Here is the key language from the case, which is In re Lindsey (Grand Jury Testimony), 158 F.3d 1263, 1272 (D.C. Cir. 1998):

"...Lindsey appeared before the grand jury and declined to answer certain questions on the ground that the questions represented information protected from disclosure by a government attorney-client privilege applicable to Lindsey's communications with the President as Deputy White House Counsel, as well as by executive privilege, and by the President's personal-attorney-client privilege...

The court held that Lindsey could not invoke attorney-client privilege on behalf of President Clinton:

When an executive branch attorney is called before a federal grand jury to give evidence about alleged crimes within the executive branch, reason and experience, duty, and tradition dictate that the attorney shall provide that evidence. With respect to investigations of federal criminal offenses, and especially offenses committed by those in government, government attorneys stand in a far different position from members of the private bar. Their duty is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure. The constitutional responsibility of the President, and all members of the Executive Branch, is to "take Care that the Laws be faithfully executed."...

When government attorneys learn, through communications with their clients, of information related to criminal misconduct, they may not rely on the government attorney-client privilege to shield such information from disclosure to a grand jury.

This opinion (emphasis added) might partly explain why Don McGahn, the current White House Counsel, reportedly threatened to resign after Trump discussed firing Mueller with him. McGahn might have been worried that conversations he had with Trump about Rosenstein and Mueller (1) might show Trump has the corrupt intent to obstruct Mueller’s investigation, (2) could not be shielded from Mueller by invoking attorney-client privilege, and (3) might implicate McGahn himself in obstruction.

Regardless, targets of Mueller's investigation might have to check their privilege - their attorney-client privilege, that is - at the door to the grand jury room. Their claims of attorney-client privilege might fail as completely as the Nunes memo.

(Note to Readers: The discussion of the exceptions and waivers is adapted from Jenner and Block's "Protecting Confidential Legal Information: A Handbook for Analyzing Issues Under the Attorney-Client Privilege and the Work Product Doctrine." This is one of many useful, publicly accessible legal resources on the site of this law firm. Coincidentally, one of Jenner & Block's founders, Albert Jenner, served as minority counsel to the Senate Watergate Committee.)