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Trump's legal issues bring attention to attorney-client privilege

Peter Goodman


Attorneys know how extraordinary Mr. Trump’s legal situation is, aside from his being an ex-president.

The attorney-client privilege is pretty sacred to lawyers and courts. An attorney can’t share privileged information even if her client murdered dozens and molested numerous children. The law values that highly a defendant’s right to be confident in confidentiality.

A critical exception is that while the attorney is muzzled as to past crimes, if she conspires with the client about committing future crimes or participates in fraud, she can’t claim lawyer-client privilege. It makes sense: anyone accused of a crime, but presumed innocent, is entitled to a full and competent defense, but acquires no right to use the attorney to commit new crimes. A new crime requires the courts to assess client’s and lawyer’s relative criminal liability.

Piercing the privilege using the crime-fraud exception is so rare that prosecutors and criminal defense counsel never actually see it done in decades-long career.

Two different judges (one of whom an appellate court refused to overturn recently) in two separate cases involving different crimes and different lawyers, recently ordered Trump’s lawyers to testify and provide their notes, based on that exception. Both judges stated clearly that they’d seen ample evidence of criminal activity.

Judge Beryl Hamilton ordered attorney Evan Corcoran to testify and produce his notes regarding Trump’s retention of classified documents. Corcoran had told the court and the government that Trump had returned all the classified documents he had. A government search then uncovered hundreds more. Lying to courts isn’t popular with judges. Who lied? A rumor that Trump misled Corcoran may or may not prove true. The D.C. Circuit Court of Appeals refused to hear Trump’s appeal. Corcoran may soon be testifying against Trump to save Corcoran’s law practice and perhaps his freedom.

Not two months ago, Judge Eric Davis, hearing Dominion v Fox, stated he’d seen evidence of criminal conduct in Trump’s effort to overturn the 2020 election. The alleged crimes include defrauding the government and conspiracy to interfere with a government proceeding. There, a different lawyer, having conspired with Trump to use dubious methods to overturn the election, will have to help us figure out how clearly Mr. Trump’s knew he was doing wrong.

Trump’s lovers’ quarrel with Ron DeSantis is a tasteless distraction. DeSantis hopes to profit politically from some fellow Republicans’ belated recognition of Trump’s self-absorption and chaotic management.

Both men are hostile to the things we hold dear, such as freedom of speech, democracy, and truth. DeSantis’s repeated efforts to muzzle the press, dictate what teachers can teach (and people talk about in schools), ban books, and seek revenge on Disney for disagreeing with him make democracy almost as endangered a species in Florida as in Russia, Israel, and Mexico. His recent Fox diatribe against Trump articulates how he’d run our government. He’d have fired Fauci. (Don’t want no doctors talking about medicine!) When DeSantis said that unlike Trump, “I’d hire . . .” I thought he’d say “qualified individuals good at their jobs.” Instead he promised to hire people who would shut up and get with his program. But governments’ huge fault is stifling discussion. We reach the best policy by reasoned discussion with a variety of individuals, not by being so close-minded and vengeful that the leader hears only what folks know he wants to hear.

Putin is painfully learning where that lands you.