During voluntary closed-door testimony before the House Intelligence Committee on Wednesday, Donald Trump Jr. cited “attorney-client privilege” to avoid answering questions about a critical discussion he had with his father this past summer following explosive New York Times reporting about the Trump campaign’s efforts to collude with Russia.
According to the ranking Democrat on the committee, Rep. Adam Schiff (D-CA), Trump Jr.’s rationale for invoking attorney-client privilege is that a lawyer was in the room when he communicated with his father about how to respond to a bombshell Times reporting detailing how he and other top Trump campaign officials met with a Russian lawyer in Trump Tower in June 2016. Trump Jr. helped arrange that meeting after an intermediary promised him the Russian lawyer was in possession of incriminating Kremlin-provided information about Hillary Clinton.
According to a subsequent Washington Post report, President Trump “personally dictated” a misleading statement Trump Jr. released about the meeting. Though that statement claimed the meeting was “primarily” about “a program about the adoption of Russian children,” additional reporting prompted Trump Jr. to release emails indicating he was eager to meet with the lawyer because he wanted the compromising Clinton information.
“If it’s what you say I love it especially later in the summer,” Trump Jr. wrote to the intermediary, in reference to obtaining the compromising information about Clinton.
The White House acknowledged President Trump’s involvement in crafting his son’s misleading statement. Press Secretary Sarah Huckabee Sanders told reporters that the president was just trying to be a good dad when he “weighed in as any father would based on the limited information that he had.”
During a scrum with reporters following Wednesday’s hearing, Schiff told reporters he didn’t think Trump Jr.’s invocation of attorney-client privilege was appropriate.
“I don’t believe you can shield communications between individuals merely by having an attorney present,” he said. “That’s not the purpose of attorney-client privilege.”
Lawyers who spoke to ThinkProgress agreed. Richard Painter, a University of Minnesota law professor who previously served as chief ethics counsel to President George W. Bush, told ThinkProgress that the privilege “only covers a conversation that is undertaken for the purpose of getting legal advice.” He added that even then, it would only apply if Trump Jr. and his father had the same attorney, which they reportedly do not.
“This gets down to, this is a privileged communications only if the conversation was undertaken was the attorney by both of them for the purpose of seeking legal advise and the same attorney represented both of them,” Painter said.
In an email, Harvard constitutional law professor Laurence Tribe said he also found Trump Jr.’s invocation of attorney-client privilege to be “ridiculous.”
But Republicans on the committee told reporters they weren’t troubled by Trump Jr.’s refusal to answer questions. During a Fox News interview Thursday morning, Rep. Troy Gowdy (R-SC) went as far as to say, “I don’t even think [Trump Jr.] did anything improper.”
Gowdy says he doesn't have any problem with Don Jr's absurd invocation of "attorney-client privilege" yesterday because Democrats sometimes invoke privilege too and they shouldn't have leaked details of Don Jr's testimony in first place pic.twitter.com/KSAk0X7YJC
— Aaron Rupar (@atrupar) December 7, 2017
Painter said that if members of the House Intelligence Committee eventually want to compel Trump Jr. to answer questions, they could force him to testify again.
“Call him back. First of all, who did the attorney represent? What was the name of the attorney? It better be a private attorney, because if it was a White House attorney, forget it,” Painter said. “Who was he representing and what was the purpose of this conversation?… If you consult an attorney for purposes of crime or fraud — such as concocting a false story or obstruction of justice — the ‘crime-fraud exception’ applies, and it gets blown wide open.”
“This whole thing reeks of crime-fraud exception to me,” Painter added.