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Trump Is Close to Being Right on the Attorney-Client Privilege—But for All the Wrong Reasons

[caption id="attachment_14503" align="alignleft" width="620"] President Donald J. Trump arrives at Joint Base Andrews Air Force Base Monday on April 16, 2018, in Maryland, en route to Miami.[/caption] Since the FBI seized the files of the president’s personal attorney, legal experts have been stepping up by the dozens to show us that the president’s announcement of the death of the attorney-client privilege was premature, and that—thankfully in a system that prides itself in the rights afforded defendants—this basic due-process safeguard is alive and well. Even Kellyanne Conway’s husband, a well-known Big Law litigator, got into the act, citing Justice Department policy respectful of the privilege: Because of the potential effects of [the seizure of a lawyer’s files] on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search. Normally, if President Donald Trump ever got anything right—even Halley’s comet passes along every 70-some years—I might very well not, out of sheer anger, concede it. The following statement then, based on the importance of the topic, is an exception: While the attorney-client privilege is by no means dead, it lies wounded—hidden in plain view, as it were—in modern practice. Although for an entirely wrong reason, the president wasn’t too far away from being right about the present condition of the privilege. The big blow suffered by the privilege actually dates back to 1986. The real antagonist is the U.S. Supreme Court, not Robert Mueller (who was in private practice at the time, and thus has an alibi). In a case entitled  Nix v. Whiteside, the court endorsed a criminal defense counsel’s threat to tell the judge that his client was lying if the defendant testified falsely and laid down a prohibition against counsel taking a would-be perjurious client through direct examination. Nix and the state codes of attorney conduct outline a variety of responses to seeming client perjury. If an effort to convince the client to testify truthfully fails, the responses include counsel denouncing his client’s false statements to the court, withdrawing from the case, or allowing the client to narrate his story without counsel’s normal guidance of the accused through direct examination. Each of those responses are designed to protect the search for truth. The trouble here is that the goal of getting our hands on the truth must occasionally yield to other aspects of justice. For example, in order to discourage police abuse in the gathering of evidence, the exclusionary rule precludes the introduction of truths obtained through impermissible means. Likewise, the right of a criminal defendant to effective assistance of counsel is sufficiently central to justice to require additional inroads into the quest for truth. Clients worried that they could be denounced to the court if their lawyer is reluctant to credit a version of events at odds with the police account don’t feel safe in disclosing the facts necessary for counsel to formulate the most effective defense. In effect, the current rule creates a standardless summary look into the truthfulness of the defendant’s version with defense counsel acting as both prosecutor and judge, with no guidance as to when counsel’s suspicion of untruthfulness becomes actual “knowledge,” and with no assistance of counsel on the part of the accused. In this abbreviated trial within a trial, the trust and candor upon which a robust right to counsel is built are thus eroded, and law enforcement, through unlawfully gathered and ultimately suppressible evidence that nonetheless influences defense counsel and contributes to a guilty verdict, can thus accomplish indirectly what it is prevented from doing directly. The remedies to suspected client perjury only exacerbate the problem. Withdrawal hands the same problem off to the next attorney, who must then withdraw, as must the next one after that  ad infinitum. The narrative method in which counsel calls the accused to the stand but does not participate in questioning him or her clearly telegraphs to the fact finder counsel’s summary conclusion about the client’s inveracity and guilt. And telling the judge that the defendant is lying fully converts defense counsel into a second prosecutor. If that’s not bad enough, the defense counsel’s condemnation of the accused presents equal protection problems, as revealed by a study showing that public defenders who disproportionately represent poor and minority defendants invoke the remedies at a far higher rate than do private attorneys, who would presumably suffer economically if it got around that they’d turned against their more affluent, paying customers. Were prosecutors to refuse to call police to the witness stand who intend to testify untruthfully, a large number of cases would go unprosecuted. Experience shows that prosecutors generally call them anyway, presumably to maintain smooth working relations with the arm of law enforcement that gathers the evidence prosecutors need to put the bad guys away. And it’s by no means clear that an accused’s untruthful testimony will, in the context of the adversarial process, darken the waters of truth. With their untruthful version of events often successfully challenged on cross-examination, a defendant’s mendacity often leads the fact finder quickly to the truth and a verdict of guilty. As John Henry Wigmore, dean at Northwestern Law School and the father of American evidence law, observed, “Cross-examination is the greatest legal engine ever invented for the discovery of truth.” Despite the above problems, nearly all commentators have subscribed to the remedial measures called for in  Nix and the various codes of professional responsibility. The earliest critic of the measures was the late Monroe Freedman, dean of Hofstra Law School. Freedman’s view that the defendant’s trust in the process and candor with counsel were essential to the correct balance between the prosecutorial powers of the government and the individual rights of the accused got a firm rebuke at the time from then SCOTUS Chief Justice Warren Burger, who had written the opinion in  Nix and who subsequently filed a grievance against Freedman with the D.C. Bar. The grievance was ultimately dismissed, and, over the course of his lengthy and esteemed career, Freedman maintained—correctly, I believe—his trust that the crucible of cross-examination and the unfettered right of the defendant to testify best serve the system’s interest in truth and justice, which, as we’ve seen, don’t always coincide. Jay Sterling Silver is a law professor at St. Thomas University. His commentary has appeared in The New York Times, The Washington Post and other national and local media.