Trump Lawyers Face Crime-Fraud Exception in Claiming Attorney-Client Privilege

WASHINGTON — The latest indictment against former President Donald Trump this week listed as co-conspirators five attorneys who are likely to have their loyalty to their client tested in court soon as he faces charges of illegally trying to overturn the 2020 presidential election.

The Justice Department gives enough information to show the five attorneys can expect to be indicted along with their boss.

So far, they have claimed attorney-client privilege in refusing to disclose potentially incriminating evidence against Trump.

Now that the former president faces a total of 78 criminal charges, the attorneys would not be able to claim attorney-client privilege as a basis for withholding information from prosecutors, according to legal ethics experts.

“If Trump, as his lawyers have suggested, intends to present a defense based on his reported reliance on advice of his counsel, then that would constitute a waiver of the [attorney-client] privilege and he will be placing details of his communications with his lawyers into a factual issue in which the prosecutors would have a right to explore,” said Arthur Burger, a Washington, D.C.-based legal ethics attorney.

Based on the description of the unidentified co-conspirators in the court documents, the five attorneys are widely believed to be Kenneth Chesebro, Jeffrey Clark, John Eastman, Rudy Giuliani and Sidney Powell. 

Any refusal to turn over evidence about Trump could mean his attorneys are the next ones charged with crimes, such as for obstruction of justice. They also could lose their bar licenses, according to legal ethics attorneys.

The key issue is the crime-fraud exception to attorney-client privilege. It can render the privilege moot when communications between an attorney and client are used to further a crime, tort or fraud.

At that point, the attorneys could be required to reveal incriminating evidence about their clients.

“I think the indictment itself should provide some evidence for the crime-fraud exception,” said Burger, who chairs the professional responsibility practice group for the law firm Jackson & Campbell.

The indictment includes “strong allegations of a conspiracy,” he said.

In Clark v. United States, the U.S. Supreme Court ruled that, “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.”

The crime-fraud exception does require that the crime or fraud discussed between client and attorney be carried to completion, according to federal court rulings. The federal courts are inconclusive on how little knowledge attorneys can have about a crime or fraud before they must disclose it.

Therein lies the ambiguity in Trump’s case. He claims he did nothing wrong. His attorneys have agreed with him in their public statements, possibly indicating they don’t believe they know of any incriminating evidence against Trump.

“I think Trump has got a very difficult space in which to make a coherent argument that he should be protected by the [attorney-client] privilege,” Burger said.

The next step is a legal battle between the attorneys and Jack Smith, the Justice Department special counsel investigating Trump.

“If they were acting in a way that we are taught to act as professionals, they will be fine,” Dan Meyer, a legal ethics attorney for the law firm Tully Rinckey, said about Trump’s attorneys.

If they “strayed” beyond the legal ethics allowed under the law, the consequences for them could be severe, he said.

“Anytime there’s an indictment coming down for an attorney, it’s far worse than it is for the attorney’s client,” Meyer said.

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