The Corner

Law & the Courts

Yes, The Attorney General Can Have Privileged Conversations With The President

Ben Rhodes is one of several Obama administration alums active on Twitter pushing Team Obama’s post-presidential narratives; others include David Axelrod, Dan Pfieffer, Jon Favreau, Jon Lovett, and Tommy Vietor. You’ll remember Rhodes as the maestro of the Obama narrative-building campaign to sell the Iran deal, a onetime aspiring novelist from a Master’s of Fine Arts program who bragged to the New York Times in 2016 about how easy the modern press was to manipulate:

“All these newspapers used to have foreign bureaus,” he said. “Now they don’t. They call us to explain to them what’s happening in Moscow and Cairo. Most of the outlets are reporting on world events from Washington. The average reporter we talk to is 27 years old, and their only reporting experience consists of being around political campaigns. That’s a sea change. They literally know nothing.”

Yesterday, Rhodes thought he had what you might call a “sick burn” on Mike Huckabee on Twitter:

While the OLC opinion also discussed other ways in which the privilege could apply — such as when DOJ represents federal officials in a lawsuit — it was not limited to that context.

In 1998, the U.S. Court of Appeals for the D.C. Circuit largely endorsed the 1982 OLC memo’s reasoning in a case involving Deputy White House Counsel Bruce Lindsey’s ability to invoke the attorney-client privilege before a grand jury. The court rejected the independent counsel’s view that government attorneys cannot assert the attorney-client privilege, citing the OLC opinion and noting that ”The practice of attorneys in the executive branch reflects the common understanding that a government attorney-client privilege functions in at least some contexts.” Lindsey lost that case anyway, and the reasons why illustrate the limits of the privilege. First, the court found that “advice on political, strategic, or policy issues,” including the defense of impeachment proceedings would not be covered by the attorney-client privilege, which applies only to legal advice. To protect those conversations, the president would need to invoke executive privilege. Second, the court concluded that a grand jury could pierce the privilege because of its role in investigating crimes: “a government attorney, even one holding the title Deputy White House Counsel, may not assert an attorney-client privilege before a federal grand jury if communications with the client contain information pertinent to possible criminal violations.” Notably, however, the court’s analysis of the distinction between impeachment (which is a political process) and a grand jury investigation suggests that Congress may not have the same power that a grand jury has to compel government attorneys to disclose legal advice, because Congress has no power to prosecute crimes.

Whether Jeff Sessions could invoke the attorney-client privilege is another matter; the issue wasn’t pressed yesterday, and most of the conversations he refused to discuss with the Senate Select Committee on Intelligence were clearly political and policy discussions that would be protected, if at all, by the politically thornier invocation of executive privilege. In that sense, Huckabee’s take on the hearings was off the mark as well. But there’s no legal reason why, if Sessions offered legal counsel to the president, that counsel would not be protected by the attorney-client privilege. Next time, Rhodes should remember that not everybody out there is a 27-year-old who knows nothing.

Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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