A Quick Impeachment Privileges Primer

Trump’s “personal attorney,” Rudy Giuliani, has been subpoenaed to testify before the House Intelligence, Oversight and Foreign Affairs Committee. The subpoena expressly states that it is “pursuant to the House of Representatives impeachment inquiry. Giuliani has declared that he will only testify if Trump permits him to.

While the power of Congressional subpoena is very broad, there are some applicable privileges that can be raised. This article will review three and discuss their applicability to Giuliani’s subpoena.

  1. Executive Privilege.

Executive privilege protects that which is necessary to ensure the President of the United States gets advice ON MATTERS OF POLICY, freely from his cabinet and staff. The notion here is that the President’s critical job functions require that those advising him be able to speak freely, and with candor, without concern that their words will later be used against them or the administration.

The privilege belongs to the President. However, as the emphasized portions above suggest it is much more narrow than this President is trying to claim. Since it is designed to protect the sanctity of legitimate policy making it does not apply to circumstances of potential Presidential misconduct. Thus the Supreme Court ruled in United States v. Nixon.

Put simply the ability of the President to get open advice in the performance of his Constitutional duties must be balanced against the ability of Congress to perform its Constitutional duties related to potential impeachments. Where Congress acts to get information necessary to perform that Constitutional duty, executive privilege cannot apply.

2. Attorney/Client Privilege.

This privilege Protects communications between an attorney and his client. When applicable the privilege belongs to the client, in this Trump. The attorney/client relationship has to exist, which is questionable in the case of Giuliani and Trump. Giuliani was acting as a foreign “diplomat,” not as an attorney.

Critically, the attorney/client privilege does not protect an attorney’s communications with third parties. Thus Giuliani’s talks with Ukraine officials are not subject to this privilege, only his talks with Trump.

Finally, the crime/fraud exception eliminates the privilege when the attorney himself is involved in the furtherance of the crime, fraud, or conspiracy to commit same. Because Rudy is accused of being a participant in the misconduct of his client this privilege should not apply.

3. Self Incrimination Privilege.

The 5th Amendment applies to everyone, even the President. Lois Lerner infamously invoked her 5th Amendment rights to dodge Congressional testimony, but was within her rights to do so. The privilege applies only to the person called to testify who invokes it. It would only apply to Trump if he were called to testify.

As suggested above it may well apply to Giuliani because Giuliani was involved in the illegal acts. Thus, Giuliani could invoke his personal 5th Amendment rights to not testify. To invoke this right Giuliani has to have a credible claim that his testimony might be damaging to him in terms of criminal implications. Clearly he does.

There are two points that need to be made here. First the right is solely Giuliani’s in this example. If Giuliani decides to waive it, Trump’s 5th Amendment rights can’t stop him. Second, Congress could still compel Rudy to testify by granting him immunity from prosecution, or immunity from his testimony being used against him.

Conclusion

The only potentially valid privilege Giuliani has to invoke is his personal right against being compelled to incriminate himself. To do so he must state he is invoking that right, a damaging act to the President in itself. When your co-conspirator has to invoke the 5th Amendment it does not make you look good.

Giuliani should get an attorney. One more competent than he is.

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