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It’s a Privilege to Speak with You.

The House committee investigating the January 6 attack has subpoenaed top White House counsel Pat Cipollone following the testimony from Cassidy Hutchinson, a former top aide to ex-White House chief of staff, Mark Meadows.

Hutchinson testified about conversations she had with Cipollone concerning January 6 and how he had fought against Donald Trump’s attempts to overturn the 2020 election.

The subpoena of a White House counsel is a rare show of force for a congressional committee. Cippolone most likely will invoke the attorney-client privilege in response to many questions.

This post will explore the extent to which attorney-client privilege could protect Trump.

The attorney-client privilege works to keep communications between lawyer and client private. A few exceptions exist. For example, communications made to an attorney for the purpose of furthering a crime or fraud are not entitled to this privilege. Post-commission concealment of the crime or fraud is also not privileged.

Another exception would be if there exists an overriding public policy interest. For example, a lawyer can disclose the location of her client if doing so furthers the well-being of a child. Also, a corporation is not entitled to the attorney-client privilege against its shareholders if the latter has good cause to breach the privilege.

A client, but not a lawyer, who wishes not to raise attorney-client privilege as a defense is free to do so, thereby waiving the privilege. So Trump could waive the privilege if he wished. Not likely.

The House committee may argue that although he was White House counsel, Cipollone’s client was the Office of the Presidency, not Donald Trump. Therefore, it may be that these conversations fall outside the scope of the attorney-client privilege.

The committee may be able to get around attorney-client and executive privilege if they argue Trump was discussing and planning illegal activity. This is what they did with Trump’s election attorney, John Eastman.

Even if the privilege protects conversations with Trump, the committee will be able to ask Cipollone about communications he had with people other than Trump.

“Any concerns Mr. Cipollone has about the institutional prerogatives of the office he previously held are clearly outweighed by the need for his testimony,” Representative Bennie Thompson, Democrat of Mississippi, and Representative Liz Cheney, Republican of Wyoming, said in a statement.

This is not Trump’s first go-around with the attorney-client privilege. Not so long ago, he voiced concern in the wake of an FBI raid on his former personal attorney Michael Cohen’s home, office, and hotel room. Trump tweeted, “Attorney-Client privilege is now a thing of the past.” “I have many (too many!) lawyers and they are probably wondering when their offices, and even homes, are going to be raided with everything, including their phones and computers, taken. All lawyers are deflated and concerned!”

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