Criminal Justice Insider

As President Trump winds down his final days in office, many commentators and scholars have been wondering aloud what will become of him given the various scandals that have surrounded his tenure. Because of the tempest that perpetually envelopes him, it is easy to lose track of each and every investigation into his conduct. One such inquiry that may have gotten lost amongst the fray is the Justice Department’s investigation into whether the President was offered a bribe in exchange for a presidential pardon.

The details surrounding this investigation are confidential and public filings have been heavily redacted. It is not publicly known who may have offered a bribe, what, if anything, was offered and whether that person was, in fact, pardoned. However, it has become clear that the President has discussed such pardons with his personal legal team.

Ordinarily, such discussions are likely privileged pursuant to the attorney-client privilege. This oft-invoked privilege protects communications between a lawyer and the client for the purpose of providing legal advice. Given the specter of criminality here, it is not clear that such discussions between the President and his lawyers would be so protected due to an important exception to the attorney-client privilege: the crime-fraud exception.

Communications between a lawyer and a client lose their privileged status if they are used to perpetrate a crime or fraud such as bribery. The “crime-fraud” exception applies when an attorney’s advice is used to commit or further the crime. One cannot shield themselves from prosecution solely by involving an attorney. As the Supreme Court wrote in Clark v. United States, 289 U.S. 1 (1933), “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.”

If the President consulted his personal attorneys on matters regarding pardons, and those pardons were the result of a bribe, the communications with his attorneys lose their protected status. The President would be, in essence, using his personal attorneys and their advice to perpetrate the crime of bribery. Notably, a bribe doesn’t need to be monetary. It can be the receipt of anything of value, including future business opportunities, exchanged in order to influence an official act. See 18 U.S.C. 201(b)(1).

Nor would such communications be protected by executive privilege. The executive privilege only applies to those working within the Government. Accordingly, the President’s communications with his personal, non-governmental attorneys would not qualify for this protection.

The Justice Department has long maintained that President Trump is shielded from prosecution while in office. However, his time in the White House is coming rapidly to a close. When he leaves, it is not all clear whether he can rely on the attorney-client privilege to shield his discussions with his personal attorneys regarding pardons from prosecutorial purview. Only time will tell.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533