The further to the left or the right you move, the more your lens on life distorts.

Tuesday, April 10, 2018

Attorney-Client Privilege

Attorney-Client Privilege. It used the be the cornerstone of our legal system. It used to be defended by progressives, conservatives, libertarians, the ACLU, and most other ideological groups across the political spectrum. No more.

The four constituencies will stop at nothing to bring down a duly elected president of the United States. The Dems are ecstatic, the media is celebratory, the #nevertrump GOP is silent, and the deep state is doing the bidding of one of their own, Robert Mueller.

Mueller has investigated Trump for more than a year and has found nothing that implicates Trump in Russian "collusion." So he moves on to anything else that might bring Trump down. One can only wonder whether this would have happened had Hillary Clinton been elected president. Whether clear evidence of influence pedaling while Secretary of State would have warranted a special counsel? Whether violation of national security law would have warranted a special counsel? Whether destruction of evidence (think: 33,000 emails) would have warranted a special counsel? You can bet your life that progressives and the ACLU would have screamed bloody murder had one been appointed, and you can double that bet had the appointed special counsel violated Hillary's attorney-client privilege. The same could be asked about the multiple scandals during the Obama era. But this is Trump and the hatred runs deep and hot. So we get silence.

Melissa MacKenzie writes:
To the lawyerly among the Twitterati, there must be a there, there. One commenter mused upon the “slow roll of the Nixon investigation” and saw an analogy. And he’s right. There is an analogy. The media hate Donald Trump just as they hated Richard Nixon. Democrats hate Donald Trump just as they hated Richard Nixon. And there are enough Republicans who cannot abide the shift in the demographics of the Republican electorate that they profoundly desire to see Donald Trump fail. And then, Donald Trump’s own pugnacious streak makes him frustrating enough that even his devoted followers grow exasperated at his behavior.

But, Donald Trump is not Richard Nixon and America today is not the Vietnam-era times fraught with an unpopular foreign war. Today, the war being fought is cold and civil and cultural. In D.C. and cities around the country, elites are shocked and horrified that someone such as Trump even is in office. They hate him. They hate anyone who would support him. The fact that Donald Trump enjoys 86% approval among Republicans fills them with revulsion at him and them. Those people.

Many from Mueller on down believe they are doing God’s own work by investigating Trump and following the trail to wherever it leads, even though it’s leading away from Russian collusion and into the Siberia of business sleaze. They are going to cleanse America of this Trump stench, by God, and nothing will stop them, not even attorney-client privilege. Even if skating close to the edge of the law tosses all the evidence, the investigation will so mire the president in legal minutiae that he won’t have time to enact his mandate… and he did have a mandate. Everyone but his voters exhales in relief: the no-mind buffoon can get nothing done. Hallelujah!

As Andrew McCarthy rightly points out, even something as stupid and trivial as a long ago ham-handled porn-star payoff can result in big trouble for a President. This is obviously true. A wrong doing, no matter how small, can spell the end for a politician with salivating prosecutors circling. But drops of truth in an ocean of deceit and corruption tend to get lost in the bigger truth: the system that allows for this kind of destruction and ignores the toxic system creates a populace who lose faith in the institutions that ostensibly seek truth. When the institutions are compromised, their elevating a small truth to cover for their big lies fail.

Trump voters and even fair-minded middle-of-the-roaders consider the crimes committed by Hillary Clinton and wonder at the double standard. She and her team smashed phones and computers to bits after the evidence therein was subpoenaed. Oops. Hillary Clinton and her chief minion Cheryl Mills claimed attorney-client privilege when Mills, herself, was under investigation for obstruction. Did Hillary answer any of the FBI’s questions? We don’t know as they didn’t record the session. Oops. And then, classified emails showed up on Hillary’s assistant’s husband’s computer who is in prison for pornographic interaction with a minor online. Has the Clinton Foundation or Huma Abedin’s home or Hillary’s bathroom been no-knock raided yet?

A blatant, indefensible double standard is at work here. But the four constituencies don't care. In fact, it's worse than that—they revel in it.


Alan Dershowitz writes:
There are, of course, exceptions to the lawyer-client privilege. First, the lawyer must be acting as a lawyer, not as a friend or business associate. But the scope of a lawyer’s work is quite broad, encompassing much more than merely giving legal advice. It includes settling cases by making payments to potential litigants. Second, the lawyer must be engaged in lawful activities on behalf of the clients. Illegal or fraudulent activities are not covered by the privilege. Nor are communications with third persons, such as the lawyer for the other side, though such communications may be covered by the much weaker “settlement privilege.”

Civil libertarians should be concerned whenever the government interferes with the lawyer-client relationship. Clients should be able to rely on confidentiality when they disclose their most intimate secrets in an effort to secure their legal rights. A highly publicized raid on the president’s lawyer will surely shake the confidence of many clients in promises of confidentiality by their lawyers. They will not necessarily understand the nuances of the confidentiality rules and their exceptions. They will see a lawyer’s office being raided and all his files seized.

I believe we would have been hearing more from civil libertarians— the American Civil Liberties Union, attorney groups and privacy advocates — if the raid had been on Hillary Clinton’s lawyer. Many civil libertarians have remained silent about potential violations of President Trump’s rights because they strongly disapprove of him and his policies. That is a serious mistake, because these violations establish precedents that lie around like loaded guns capable of being aimed at other targets.

I have been widely attacked for defending the constitutional rights of a president I voted against. In our hyperpartisan age, everyone is expected to choose a side, either for or against Trump. But the essence of civil liberties is that they must be equally applicable to all. The silence among most civil libertarians regarding the recent raid shows that we are losing that valuable neutrality.
Hyper-partisanship isn't anything new, but the level of pure, irrational hatred of Trump mixed with a dollop of derangement allows the four constituencies to remain silent as scurrilous attacks are launched and violations of the law and the constitution are condoned. If the four constituencies succeed in destroying Trump's presidency and unseating a person who received over 60 million votes in a national election, it will be a dark day for this country, for the constitution, and for the very people who want it so badly.