The Manafort lesson: Be afraid. Be very afraid.
Thu Nov 2, 2017 10:55am

Holy moly, Mueller is going all out on Manafort! Lawyer-client privileged communications are REALLY protected in the US justice system. Mueller got a judge to revoke Manafort's protection!


It’s not an overstatement to characterize the attorney-client privilege as the cornerstone of criminal law, an inviolable right that can and must withstand all manner of legal aggression.* It’s also one of the small handful of criminal procedural notions sewn directly into our pop culture fabric. Even if all your legal knowledge comes from watching Law & Order, you’re still likely aware of your Miranda rights; that law enforcement needs probable cause to search your apartment and maybe (but maybe not) your car; and most especially that when you meet with your lawyer, you can tell her the whole ugly story because she can’t be forced to testify against you or even to divulge what you’ve discussed to anyone. Period. Right?

Well … mostly right. On Monday, Politico reported that Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia had agreed to allow Robert Mueller to use something called the crime-fraud exception to attorney-client privilege to compel testimony from an attorney who formerly represented Paul Manafort and Manafort’s onetime employee Rick Gates. Although that development got lost in the blizzard of Robert Mueller news, Howell’s willingness to pierce attorney-client privilege, as well as her frank description of falsehoods as falsehoods, was in some sense the big news of the day. It was an astonishing win for the special counsel, one that reveals both Mueller’s willingness to use tough tactics and the ways in which the judicial branch may be willing to treat the cover-ups that emerge from the Trump probe. In a way, the decision revealed that the courts may be as tired of houses built of deception as the rest of us are.

Other than relatively common third-party waivers (which happen when the attorney-client communication occurs outside that protective bubble), exceptions to the sacred attorney-client privilege are incredibly rare. The crime-fraud exception is perhaps the rarest exception of them all. These cases are so infrequent precisely because they require uniquely awful behavior by the client and even sometimes by the client’s attorney. Rule of thumb? Behind any successful crime-fraud exception application there is almost certainly one hell of a story.

In a 37-page opinion dated Oct. 2 and unsealed this week, Judge Howell determined that Manafort and Gates’ former attorney could be compelled by Mueller “to testify before a grand jury regarding limited aspects of her legal representation of the Targets, which testimony the [special counsel’s office] believes will reveal whether the Targets intentionally misled [the Department of Justice] about their work on behalf of a foreign government and foreign officials.”

The crime-fraud exception holds that if a client seeks legal advice in furtherance of a crime, privileged communications between the attorney and client are waived. In effect, the distinction is as follows: You can safely tell your lawyer where you buried the bodies, but you can’t ask your lawyer how to bury the bodies.


In her opinion, Judge Howell says she’s well aware of the centrality of the attorney-client privilege. “The attorney-client and work-product privileges play vital roles in the American legal system, by encouraging persons to consult freely and candidly with counsel, and counsel to advocate vigorously on their clients’ behalves, without fear that doing so may expose a client to embarrassment or further legal jeopardy,” she writes. She pits that privilege, though, against the need to have grand juries do their work, noting that they are “an essential bedrock of democracy, ensuring the peoples’ direct and active participation in determining who must stand trial for criminal offenses.”

    • I did know that you can tell your lawyer where the bodies are, but NOT ask for advice on HOW or where to bury them... I knew that is illegal as it brings the attorney in as an accomplice, but did not ... more