Analysis: Is Trump using attorney-client privilege to block complaint in Ukraine whistleblower case?

September 19, 2019 6:24 pm By

The Washington Post reported late Thursday that the whistleblower complaint being blocked from Congress by President Trump and the Department of Justice centers on conversations Trump had with Ukrainian President, Volodymyr Zelensky. The complaint, lodged by a whistleblower on August 12 just days before Dan Coats and Sue Gordon resigned top positions in the Office of Director of National Intelligence, has garnered significant press attention over the last few days and promises a stunning showdown between Congress, the Executive Branch and the Intelligence Community. The Post and the New York Times previously reported the complaint involves “multiple acts” and a “promise” President Trump made to a foreign leader. Other outlets reported the complaint is not centered on a single phone call. Then, in an interview Thursday evening, the President’s personal attorney, Rudy Giuliani, acknowledged pushing President Zelensky to investigate Democratic Presidential candidate Joe Biden’s son.

There was reason to believe the complaint involved Giuliani prior to this new reporting. According to letters exchanged between House Intelligence Committee Chairman Adam Schiff and the Acting Director of National Intelligence Joseph Maguire, the complaint “concerns conduct by someone outside of the Intelligence Community” and involves “confidential and potentially privileged communications.” That phraseology left legal heads scratching across the blogosphere and Twitter. But a glance at the legal and ethical descriptors for attorney-client privilege suggest that privilege is being asserted here.

The privilege

Some speculated that the President could be “outside the intelligence community” and that the privilege referred to might be Executive privilege. However, the language of the statute at issue (50 U.S.C. § 3033) makes it hard to imagine that the President is truly someone “outside the intelligence community.” It is true that, for the purposes of the statute, “intelligence community” includes the Office of DNI, the CIA, the NSA, the DIA, the National Geospatial-Intelligence Agency, the National Reconnaissance Office, other offices within the Department of Defense and intelligence elements of the military. It also allows for “such other elements of any department or agency as may be designated by the President.” Under a very strained interpretation, the community only consists of those organizations, and nothing more.

But the President manages every single office listed as part of the intelligence community and has the freedom to designate other elements of agencies or legal authorities as part of the community if he or she desires. The President also has unfettered access to all intelligence from all elements of the community. It is difficult to imagine the person who presides over the entire community, dictates its composition, and has access to its entire contents could so easily be said to exist entirely outside of it. Yet the letters clearly indicate, with no hedging or qualifying language, that this complaint regards a person outside the intelligence community. Such a bold assertion would be a much thornier question if the complaint was indeed about the President alone.

Furthermore, if the letters exchanged between Schiff and Maguire were referring only to the President, it would make little sense to argue that he was outside the intelligence community in order to keep the content of the complaint from going to Congress. Under the statute, the Intelligence Community Inspector General (ICIG) is given discretion to evaluate complaints that fall within the purview of the intelligence community. The ICIG is required to report complaints that involve flagrant violations of law, abuses, or actions that affect funding, administration or operations of an Intelligence Agency within the community. Given these limits, Maguire should prefer that the complaint involves a person within the intelligence community. Only then may the Inspector General or Maguire control whether the complaint meets the standards for reporting it to Schiff and Congress. Because Maguire acknowledged the subject of the complaint is outside the intelligence community, it is likely the House Intelligence Committee could issue a separate subpoena regarding the information because it is not nearly as sensitive as internal community complaints. While the Executive Branch would surely fight such a subpoena on national security grounds, by indicating the individual is outside the community, Maguire weakened the argument that the information should be handled within the intelligence community.

Separately, the privilege language also suggests the complaint is not referring only to President Trump because Executive privilege is not traditionally invoked in this manner. While this administration’s interpretation of Executive privilege has admittedly been radically different than that of previous ones, Trump’s White House and Department of Justice lawyers have been hesitant to put that interpretation into writing. Whether this is out of fear the invocation will not stand or simply because there is little legal authority to back it up, the fact remains that the Trump administration has not formally submitted many documents invoking Executive privilege. It would be surprising if the counsel for Acting DNI Maguire had the immediate discretion to assert Executive privilege most lawyers in the White House Counsel’s office and the Department of Justice have been hesitant to use. White House lawyers have since broadened their statements and claimed that all discussions between a President and foreign leaders are privileged. This assertion conforms to traditional contours of Presidential non-disclosure in the realm of foreign policy negotiations, but does not explain why the initial letter claimed the complaint was “potentially privileged.”

Furthermore, the contours of Executive privilege involve communications between advisors and the President, which are not subject to oversight by the intelligence community. While they may intersect with intelligence concerns, perhaps more with this President than any in history, intelligence agencies do not typically conduct operations inside the Oval Office or the East Wing residence centered on the kinds of communications covered by Executive Privilege. Any operations of that kind, if they existed, would likely prove so controversial to courts and the public that they would never be revealed, making it extremely unlikely that a communication covered by Executive privilege is underlying reason for blocking the transmission of this complaint to Congress.

Giuliani and Ukraine

It is much more plausible that the privilege referred to is attorney-client privilege, not Executive privilege. Giuliani works as a private attorney for President Trump. In late July, he traveled overseas to Madrid for a secret meeting with a top aide to the new Ukrainian President. In the meeting, Giuliani pressured the aide to release information pertaining to Joe Biden, Democratic front-runner for the 2020 election.

The intelligence community agencies routinely surveil high-ranking Ukrainian officials and citizens, as evidenced by the Special Counsel Robert Mueller III’s Report into Russian Election Interference. Giuliani’s trip to Ukraine, while covered widely in the press, has not been detailed or explained fully. According to the State Department, Giuliani was traveling to Ukraine as a private representative of Trump in his personal capacity. However, as one of Trump’s private attorneys, there exists potential attorney-client privilege between them as it pertains to ongoing legal matters.

Giuliani and Telizhenko

In May 2019, Giuliani met with Ukrainian political consultant Andrii Telizhenko “as part of aggressive efforts aimed at gathering information to undermine Democrats in the United States” the Washington Post reported. Telizhenko is just one of many Ukrainian contacts that Giuliani has developed in recent years.

Pavel Fuks, a property developer in Ukraine and Russia who once partnered with Trump, recently declared Giuliani a “lobbyist” for Kharkiv, Ukraine. In 2018, Fuks admits he hired Giuliani “under a one-year deal to help improve Kharkiv’s emergency services and bolster its image as a destination for investment.” Giuliani never registered as a foreign agent under FARA. FARA, a law requiring those who lobby on behalf of foreign countries to register with the government, has been a recent focus of federal authorities and has resulted in threats of charges and belated registration for political operatives like Paul Manafort, Michael Flynn and Tony Podesta.

Giuliani also has had various discussions in 2017 with Kharkiv government officials. A November 2017 trip documented by Ukrainian media shows Giuliani with mayor Hennadiy Kernes. Kernes was shot in the back in 2014 after his aggressively pro-Russian views resulted in allegations that Kernes hired mob members to beat up pro-Democracy protestors.

Giuliani’s relationship with Telizhenko remains the most questionable. One source directly involved with Telizhenko’s activities, who spoke on condition of anonymity because of the sensitivity of the topic, told Forensic News that Telizhenko was directly involved in efforts to potentially dig up dirt on American and Ukrainian political operatives. It is unclear if Telizhenko was acting on anyone’s behalf. On social media, Telizhenko is an avid supporter of President Trump.

With this in mind, the declaration that the complaint “involves confidential and potentially privileged matters relating to the interests of other stakeholders in the Executive Branch” becomes significantly more understandable when applied to the Trump-Giuliani relationship. The contents of Giuliani’s trip representing Trump are not public, making them confidential in nature under legal ethics rules, which are far broader than the evidentiary rule of attorney-client privilege. Attorney-client privilege applies only to legal advice and legal services, not communications unrelated to those two categories (for example, Judge Kimba Wood upheld a subpoena for millions of documents from Michael Cohen because they did not relate to legal advice or legal services). Given his formal role as one of Trump’s private attorneys, conversations Giuliani had may potentially be privileged (or not, considering there is no legal matter ongoing with Trump in Ukraine and attorney-client privilege does not cover discussions by attorneys and clients to break the law).

Similarly, the phrase “interests of other stakeholders in the Executive Branch” makes far more sense when it is taken to refer to Trump in his personal capacity and not his formal capacity as President. Interests concerning Trump in his formal capacity as President are, by nature, Executive Branch interests. There are no “stakeholders” when it comes to interests in the Executive Branch, only one: the Executive Branch itself. Interests concerning Trump in his personal capacity, however, align perfectly with the description “interests of other stakeholders in the Executive Branch.” Mr. Trump is a stakeholder in the Executive Branch as its current President. His interests, as represented by Mr. Giuliani in the Ukraine trip, may be precisely the ones contained in the complaint.

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