Robbins: Understanding privilege and waiver
In her Emily Litella guise, Gilda Radner often posed the question, “What’s all this fuss I hear about …?”
From one “Saturday Night Live” week to the next, it would be one thing and then another. In the current political parlance, it inspires me to ask, “What’s all this fuss I hear about ‘waiver’?” with the Fuss-Maker-In-Chief being one Donald J. Trump and/or his minions.
The context is this: The Mueller Report was released, raising as many questions as it answered. Some in Congress want answers, from which Mueller kept his distance. Specifically, they would like some in the presidential circle to appear before one Congressional committee or another and answer a few questions.
For example, wouldn’t it be nice, they’ve tossed about, if Don McGhan, former White House Counsel, stopped by for tea and crumpets and maybe some discussion over what suspected crimes the president suggested McGhan helped him commit.
Now, to be clear, I’m not saying that any crimes were, in fact, committed. I am a sincere and true believer in the presumption of innocence and, so far anyway, there are simply suggestions that things in the White House, from the head down, were, let’s say, untoward. I for one will only subscribe to a crime having been committed if one is ever proved.
Putting that aside for a moment, the White House has taken an interesting position. After allowing various counselors to the president — McGhan among them — to frolic freely in the grasslands of the Muller investigation and, thereby waiving any presidential privilege, now that Congress is breathing down the presidential collar, Trump and his men are waiving flags of executive privilege. So-and-so will not further testify, they now assert, under protection of the aforesaid executive protection.
Well, a little background and legal vivisection is in order here.
First, what legally is privilege and, more specifically, what is “executive privilege?” Then we will wander into the clover fields of waiver.
Privilege is more broad than you might think.
Besides the president, many others enjoy “privilege” as a function of certain legally recognized relationships. Some include attorney-client privilege, doctor-patient privilege, priest-penitent privilege and spousal privilege. What all of these have in common is a legally recognized special relationship of one sort or another centered around both trust and confidentiality.
In common law (that is, case law developed over time), privilege protects all communications uttered (or written) between those bound by these relationships. Unless with the client’s consent, except in very limited circumstances, a lawyer cannot spill the client’s secret beans. The privilege belongs to the client and not the lawyer.
The thinking behind this is that some things are sacred, like open and candid communications between a lawyer and his client. How else is one to get the right advice if she feels a sword above her if she speaks openly about the mess she’s gotten herself into? Can a doctor properly treat what remains unknown to him? Should confession be an open book? Shouldn’t marriage be held as something sacrosanct?
Executive privilege is just one flavor.
“Executive privilege” is a qualified right held by members of the executive branch of the federal government not to disclose confidential communications that would impair governmental functions. It may be asserted by the president or other executive branch officials when they refuse to give Congress, the courts, or private parties information or records which have been requested or subpoenaed, or when they order government witnesses not to testify before Congress. The privilege may, however, at times be overridden.
What about waiver?
On now to waiver.
First things first; a “waiver” is not a friendly Walmart greeter, though indeed, Walmart greeters are known to be vigorous wavers. Instead, at law, a waiver is simply the voluntary giving up of a known right. If I am detained by law enforcement and, after being advised of my right to remain silent, I determine, instead to engage in endless palaver, I have waived my Fifth Amendment right against self-incrimination.
Key to our discussion, one may “waive” a privilege. And, once waived, sort of like a lure nipped from a fishing line, once gone, it may not be reeled back in.
So among the current White House posturing, here’s the rub.
Here, the executive waived executive privilege. McGhan and others were allowed to open up to Mueller and his team. Executive objection was voluntarily suspended. And now that the White House stamps its feet, declaiming waiver … oops, too late. That particular ship has set its sails and off into the wild blue legal yonder it has ventured.
What will become of all of this? Well, a wrestling match of course. But I’d put my money on the side of the courts coming down on the side of Congress.
Wearing a different hat — or, more accurately, a wild-haired fright wig —Gilda as Roseanne Roseannadanna was keen to observe, “It just goes to show you, it’s always somethin’!”
In Washington, in particular, ain’t that the gospel truth.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.