President Donald Trump sent off a barrage of tweets attacking his former lawyer and “fixer” Michael Cohen on Thursday morning. In the process, he may have waived attorney-client privilege.
“I never directed Michael Cohen to break the law,” Trump wrote. “He was a lawyer and he is supposed to know the law. It is called ‘advice of counsel,’ and a lawyer has great liability if a mistake is made. That is why they get paid.”
American Civil Liberties Union attorney Joshua Block pointed out the potential issue with Trump’s defense here.
“Asserting an ‘advice of counsel’ defense generally constitutes a waiver of attorney client privilege, Block tweeted. “Maybe the materials withheld by the special master Barbara Jones will eventually be turned over to SDNY after all.”
Asserting an “advice of counsel” defense generally constitutes a waiver of attorney client privilege. Maybe the materials withheld by the special master Barbara Jones will eventually be turned over to SDNY after all. https://t.co/lKUTcIiqDD
— Joshua Block (@JoshABlock) December 13, 2018
Recall: Cohen and Trump went to great lengths earlier this year to keep several documents seized from Cohen’s home, hotel, and offices protected by the attorney-client privilege. With no objections from counsel or the prosecution, Jones–a former judge–was appointed the special master in charge of making such determinations. Ultimately, Jones found over 7,000 privileged items amidst those materials seized by law enforcement, according to the final special master report filed with the Southern District of New York (SDNY).
Those privilege designations could swiftly go the way of the dodo.
“It is well understood that raising an advice of counsel defense consequently waives attorney/client privilege,” Stuart M. Gerson wrote in The National Law Review. “Moreover, because a limited waiver of the privilege is rarely recognized, the door likely will open to an examination of any relevant communication between the party and the attorney, even beyond the area that encompasses the particular alleged advice of counsel at issue.”
Beyond the prospect of any sort of limited waiver being rarely recognized, a federal court in South Carolina just last year affirmed the legal principle that such a waiver is exhaustive.
“Courts in this Circuit have found that when a party asserts an advice of counsel defense that the privilege waiver applies to advice received during the entire period the misconduct is alleged to have been ongoing,” the court noted in a 2017 decision, “even up to and during trial.”
In other words, once a defendant makes the “advice of counsel” defense the alleged advice from counsel is fair game for the prosecution–any and all advice from counsel. It’s all but a complete evisceration of the privilege for defendants–at least in the district cited above.
What about the SDNY? The same rule has been in effect for quite awhile–and was also recently affirmed in a 2015 case against a Wells Fargo employee who was being prosecuted for civil fraud along with the bank.
So, where does that leave Trump? Fairly exposed here—at least in theory.
“7,146 are Privileged, 285 are Highly Personal, and 8 are Partially Privileged,” Jones wrote in her final report on the Cohen documents. Quite a haul for President Trump–assuming that a substantial portion of those documents are related to work done by Cohen for his most famous and longstanding client. But now the privileged-and-protected status of those documents are potentially in jeopardy.
[Image via Mandel Ngan/AFP/Getty Images]