Since when can an attorney be compelled to testify?
John Bies, a former lawyer in the Obama administration’s Department of Justice, wrote in a Sept. 30 post for the
Lawfare blog that Giuliani might have to rethink any plans to rely on attorney-client privilege. According to Bies, it’s unclear whether much of the information of interest to Congress is even protected by the privilege.
“The privilege exists to protect the confidential communication between a client and an attorney made for the purpose of obtaining legal advice,” said Bies, who is currently the chief counsel at American Oversight, a government accountability nonprofit. “It does not protect, for instance, communications your attorney may have had with, say, foreign government officials—or, for that matter, with U.S. government officials.”
Pushing arguments about potential corruption to foreign officials doesn’t appear to involve providing confidential legal advice, Bies said. “It is not even clear that Giuliani’s conduct constitutes legal work performed in his capacity as Trump’s attorney, even if it were charitably viewed as something other than political campaign work,” Bies said.
Nor does it appear that Trump was conveying confidences to Giuliani, rather than directing him to undertake nonlegal activities on his behalf, Bies wrote.
Even if some of the communications are privileged, they would have little protection against compelled congressional testimony, Bies asserted. He cited three reasons why.
• First, Congress has long taken the position that it can insist on disclosure of privileged communications.
• Second, attorney-client privilege can be waived when privileged communications are disclosed to a third party—and Giuliani has discussed his efforts with a large number of people.
• Third, the crime-fraud exception to attorney-client privilege could apply if the actions violate campaign finance laws.
Bies also considers whether executive privilege would be available to Giuliani. Bies concluded that the answer is no because Giuliani is representing Trump in a personal capacity, rather than an official capacity.
“Representing the president in his personal capacity involves a different set of interests and concerns than the official, governmental decision-making processes executive privilege is designed to protect,” Bies said.