The crime fraud exception to the attorney-client privilege was instituted in reaction to the Watergate scandal of the 1970’s. Observers at the time were shocked how many attorneys were involved in the Watergate mess. It was also surprising at the time how often illegal plans were funneled through lawyers, simply because it was presumed the plans could not be pried away from the lawyers. So, now if a crime or fraud is involved, investigators may indeed inquire into matters discussed between attorney and client.
Donald Trump is a prime example. According to the notes made by his lawyer, Evan Corcoran, Mr. Trump suggested Corcoran lie to investigators about his boxes of classified documents. Mr. Trump also suggested Mr. Corcoran hide or destroy subpoenaed documents. Most lawyers prefer to keep their law licenses. We can expect that Mr. Corcoran was concerned about Trump’s suggestions.
According to the indictment recently made public, Attorney I (now believed to be Mr. Corcoran) recorded these notes after his meeting with Mr. Trump:
Mr. Trump said:
- I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.”
- “Well what if we, what happens if we just don’t respond at all or don’t play ball with them [DOJ]?”
- “Wouldn’t it be better if we just told them we don’t have anything here?”
- “Well look isn’t it better if there are no documents?”
- “[A lawyer for former Secretary of State Hillary Clinton] did a great job. … He was the one who deleted all of her emails, the 30,000 emails, because they basically dealt with her scheduling and her going to the gym and her having beauty appointments. And he was great. And he, so she didn’t get in any trouble because he said that he was the one who deleted them.”
In response to the subpoena, Attorney I located 38 classified documents. He put them in a folder and sealed with them with clear tape. Mr. Trump and Mr. Corcoran then discussed whether Corcoran should take them and lock them in a safe at his hotel. Mr. Trump then told Corcoran that if there was anything bad in there, then he should … and Trump then made a plucking motion with his hands.
Yes, these statements fall well within the crime-fraud exception to the attorney-client privilege. This testimony will very likely be admitted in court. The burden then falls on Mr. Trump to somehow justify these statements. Good luck. See ABA Bar Journal report here.