To what extent was Donald Trump aware of Russian efforts to meddle in the 2016 election? And did he know about efforts to pay money to keep allegations of alleged extramarital affairs out of the media? His former lawyer and fixer, Michael Cohen, may be able to help answer these questions. But Cohen’s ability to do so may be affected by the attorney-client privilege. Morning Edition’s Joe Mathieu spoke about the attorney-client privilege in the context of the Cohen-Trump relationship with Northeastern law professor and WGBH News legal analyst Daniel Medwed.
A Transcript of their conversation is below:
Joe Mathieu:First of all how would we describe the basic characteristics of the attorney client privilege as a whole?
Daniel Medwed: Well here's the shorthand version. The attorney client privilege gives a client the right to keep certain information generated from that relationship out of court. It applies only to confidences to confidential communications between a lawyer and a client made in order to provide legal advice. It's held by the client and the client alone. Now I want to emphasize that the privilege relates to the admission of evidence in court. It's very different from the whole bucket of legal ethical rules like the duty of loyalty and the duty of confidentiality that would require a very different analysis.
Mathieu: So let's talk about the tape that Michael Cohen's lawyers disclosed last week that we played here on the air was everywhere depicting a conversation between Cohen and Trump about again those potential payments related to killing a salacious story from a former Playboy model.
In this case did Cohen first of all violate the attorney client privilege by releasing the tape?
Medwed: I don't think so and it's simply because the Trump camp and specifically Rudy Giuliani has indicated that it agreed to waive the privilege. Now if Trump had not waived the privilege, then the analysis would be much more complicated because it appears to have been a confidential communication between Trump and Cohen that concerned legal advice on how to structure a payment related to this particular story. Now there is something called the crime fraud exception to the attorney client privilege. If you make statements to your lawyer that relate to perpetrating an ongoing crime or fraud then you don't get to benefit from the attorney client privilege. And it's possible that that exception could be cited by prosecutors here. But again I think it's moot because Rudy Giuliani has indicated that they waived the privilege.
Mathieu: So even if the tape would be admissible in court could, Michael Cohen be in hot water could he get in trouble for violating New York ethics rules.
Medwed: Now taping your client is certainly unorthodox. I wouldn't do it. I wouldn't want it to be done to me if I were a client. But it's not illegal in New York… unlike Massachusetts, which has a two way consent rule where every party to a conversation must give permission. In order for it to be recorded in New York there's only a one way consent rule plus Cohen didn't seem to violate any clear ethical rules like the duty of confidentiality or the duty of loyalty because it was the FBI raid not his own behavior that precipitated the ultimate revelation of the tape.
[00:03:08] Now to be sure he could be in trouble for the contents of the tape if ultimately that constitutes a campaign finance violation or something like that. But he's probably not in hot water for simply disclosing it.
Mathieu: We're talking with WGBH News legal analyst Daniel Medwed. And of course there's more than the tape Danieln how does attorney client privilege tie in with the more recent disclosure by Cohen that he was allegedly in the room with Trump when he was informed about the Russians offer to provide dirt on Hillary Clinton? If that's true Daniel, that could be very damaging to the president.
Medwed: Now a few thoughts on that. First if other people were in the room then it might not have been a confidential communication. You can have third parties in a room and preserve the privilege. But those people must be what's called reasonably necessary to providing legal advice and according to Cohen, Don Trump Jr. and other people in the room-folks who presumably weren't necessary to any legal advice. Second Michael Cohen was a fixer which I interpret to mean that he offered both business and legal advice. Maybe the nature of that meeting was more business oriented than legal. And if so the privilege wouldn't apply. And finally there is that good old crime fraud exception that could eviscerate the privilege if there was some malfeasance here.
Medwed: Well it was a privilege as always to discuss the complications here of the attorney client privilege. We thank you as always WGBH News legal analyst and North-Eastern law professor Daniel Medwed for being with us on WGBH his Morning Edition
