I vaguely remember President Richard Nixon resigning on our grainy black-and-white television when I was 11. I’ve seen so many replays of the news coverage over the years that my memory has incorporated things I couldn’t possibly have understood at that young age. I knew there were tapes, bumbling burglars, and it was all affixed with the title “Watergate,” but at that age the thing I was scandalized about was that the president of the United States used bad words on the tapes. Really bad words.
I was quite a bit more aware and savvy in the 90’s when Bill Clinton got on television, this time in color, and declared with a straight face, “I did not have sexual relations with that woman.”
More recently, I watched presidential candidate Donald Trump walk off an Access Hollywood bus and say things that combined Nixon’s bad words and Clinton’s shenanigans, which I thought would prevent any candidate from winning an election in Utah.
But maybe Trump’s win in Utah wasn’t that surprising. Even partisan voters should be allowed to discern a candidate's ability to govern despite his or her moral failings. Thomas Jefferson was no saint, but we sing his praises as a Founding Father. Ultimately, Utahns’ willingness to overlook Trump’s personal failings allowed him to carry the state in 2016.
Yet the president’s bad pre-election behavior isn’t going away, so I find myself writing about things I'd never imagined: $130,000 in "hush money" paid to a porn star, a search of his attorney’s office, and most distressing, Trump’s tweet that "attorney-client privilege is dead."
As an attorney, this last matter really irritated me. Despite President Trump’s tweeted epitaph, I'd like to assure you that attorney-client privilege is not dead. Attorney-client privilege is a narrow privilege designed to further, not hamper, the administration of justice.
To me, the news this week felt like a harrowing journey back to law school. I did a Google search for "attorney-client privilege bar exam questions" and found this: Solo was charged with drug trafficking. He attempted to conceal the source of these drug trafficking funds by intermingling them with those of his solely owned transport company. The prosecutor subpoenaed the company’s financial records, which Solo had given to his attorney, Saul. Saul refused to hand these records over, and court-ordered compliance was sought. Will the court compel production of these documents or is it not permitted, due to attorney-client privilege?
In this case, you better not call Saul, because this is the very first question about attorney-client privilege that everyone, including President Trump, seemed to miss this week: Who is the attorney representing? Saul represents Solo, not the transport company, so the company doesn't have attorney-client privilege, and neither does its records.
But what if we change the question? Let’s say the prosecutor wants to go after the transport company for money laundering. Saul is hired to represent the transport company. Once Saul is representing the company, Solo transfers all its financial records of the company to Saul. Are the documents now protected by attorney-client privilege?
Nope. Another caveat to attorney-client privilege: If company records are sought in a legal action, records which existed before the attorney-client relationship and aren’t part of the attorney-client relationship are not subject to attorney-client privilege. This answer seems obvious when you think about it. Otherwise, Hollywood legal thrillers would lose the frantic paper-shredding trope, and the hero or villain would simply make a phone call to an attorney and hire him or her to represent their document stash.
In other words, the attorney-client privilege is not dead. It simply has nothing to do with the "porn-star payoff" scenario.
So how about a little "Law School 101," just for fun? Let's use this week's news like a bar exam question and see how we do.
In October 2016, Michael Cohen was an employee of the Trump organization. His status as an attorney was clear, but who he represented in that capacity was not. Cohen made public assertions that he represented Donald J. Trump in his capacity as president of the Trump organization, not as an individual. In January, 2017, Trump retained Cohen as his personal attorney.
In October 2016, Essential Consultants LLC, paid $130,000 to adult film star Stormy Daniels, who has publicly stated it was a "payoff" to remain quiet about her alleged past "relations" with the now-president. No one has claimed Cohen represents Essential Consultants. Cohen has maintained that the payment was a private transaction, one which his now-client, President Trump, had no personal knowledge of. The Justice Department has concerns that the "payoff" was a violation of campaign finance or banking laws. Does attorney-client privilege protect the documents relating to the payoff?
This would be the simplest bar exam question ever drafted. No attorney-client privilege exists in this scenario. Cohen himself said President Trump knew nothing about the transaction. If this is the case, what is privileged? Cohen hasn’t claimed he represents the company that made the payoff. Cohen wasn’t even representing the president individually in October 2016, according to his own statements. The warrant served by the Justice Department doesn’t even come close to infringing on attorney-client privilege.
I am disturbed by how attorney-client privilege is so grossly misunderstood by so many. It seems even more dangerous than porn star payoffs, shenanigans with interns, and cuss words on the Watergate tapes.
The rule of law cannot protect us if we don’t understand how it works. Attorney-client privilege was designed to facilitate communication between an attorney and the client so the client can speak freely to counsel about past actions and obtain proper legal advice on how to proceed. The privilege cannot be used as a shield for future bad behavior, or to facilitate in the commission of crimes.
There is no privilege for ongoing violations of the law.
E. Kent Winward is an Ogden attorney. Twitter: @KentWinward.