Hamline University Professor Explains How Executive Privilege and Attorney-Client Privilege will not Protect Donald Trump and his Attorney Michael Cohen

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President Donald Trump and his attorney may be counting on executive and attorney-client privilege to protect their conversations, but the law does not support them.

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If Donald Trump and his attorney Michael Cohen think that they can stand on the absolute nature of executive and attorney-client privileges as final fire walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.

Hamline University professor David Schultz, noted expert on constitutional law and legal ethics, states that Donald Trump and his attorney Michael Cohen are wrong to think that executive and attorney-client privilege protect their conversations. Well-established law and past precedents suggest that prosecutors may be able to use their conversations as potential evidence against them in criminal proceedings.

Schultz, author of more than 35 books and 150 articles on various aspects of American law and politics, including his most recent two volume Constitutional Law in Contemporary America, (West Academic), writes in his most recent Blog "Trump, Cohen, and the Limits of Privilege" that: “If Donald Trump and his attorney Michael Cohen think that they can stand on the absolute nature of executive and attorney-client privileges as final fire walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them." In a series of cases against previous presidents including Richard Nixon and Bill Clinton the courts have rejected both claims of executive privilege and attorney client privilege as shields that would insulate presidents from subpoenas in criminal matters or civil suits arising from behavior outside of their scope of presidential duties.

Additionally Schultz, who teaches legal ethics for lawyers, points out that the law is clear that attorneys cannot use their legal skills to commit crimes or help clients do that. In cases where prosecutors can establish that attorneys are using their skills for these purposes, they are able to break attorney-client privilege and use this confidential information as evidence. This breaking of the attorney-client privilege is referred to as the crime fraud exception. “The search warrant directed against Michael Cohen last week suggests prosecutors are using the crime fraud exception as a way of examining his conversations with Trump to determine if any laws were broken.”

Schultz is a professor of political science at Hamline University. He has taught classes on American government and election law for more than 25 years. A three time Fulbright scholar and winner of the Leslie A. Whittington national award for excellence in public affairs teaching, David Schultz is the author and editor of 35 books and 150 articles on American politics and law and is a frequently quoted political analyst in the local, national, and international media.

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David Schultz, Professor, dschultz@hamline.edu
Hamline University, St Paul, MN
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