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.
The indictment against Manafort and Gates is a veritable laundry list, 12 counts in all, but the charges can be summarized as conspiracy to launder money, failure to disclose foreign bank accounts, failure to register as agents of a foreign principal, and making false and misleading statements to the Foreign Agents Registration Unit. The special counsel’s office alleges that Manafort collected millions of dollars for work he did on behalf of the Ukrainian government between 2007 and 2012 yet declined to report that work to FARA and failed to inform the Internal Revenue Service about the income he earned from this activity.
Fast-forward to late March 2016, when Manafort became Donald Trump’s campaign manager. That lasted until Manafort’s Russian connections—specifically the August 2016 discovery of handwritten ledgers showing $12.7 million in undisclosed cash payments to Manafort—suddenly become a problem for Trump. The then–Republican nominee accepted Manafort’s resignation on Aug. 19, 2016.
A short time later, Trump won the presidential election, an event that surprised many, including perhaps even Trump himself. Consequently, key figures in the Trump campaign began to receive a level of scrutiny they likely hadn’t anticipated. A short time after the election, Manafort and Gates responded to FARA’s request for an explanation of their activities. No doubt aware of their quandary—they should’ve registered but didn’t—Manafort and Gates sought legal help, and so it was their attorney who responded to FARA three times: on Nov. 23, 2016; Feb. 20, 2017; and June 27, 2017.
The problem here was that some of these letters made assertions that turned out to be, from the vantage of the special counsel’s office and then the judge, quite false. As Judge Howell characterized it, the “2017 FARA Submission attempts to paint the Targets as mere spectators in a game when they actually were integral players.” Judge Howell notes that the special counsel’s office wasn’t seeking confidential notes or discussions between counsel and her clients. Mueller and his team merely wanted to confirm facts she had passed along as having originated with Manafort and Gates. To put it another way, Mueller is asking the judge to get him answers to simple questions about whether Manafort and Gates lied to counsel and whether counsel in turn passed those lies along.
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.”
The nature of counts 11 and 12 of the indictment—lying, falsifying, and misleading the government—went a long way toward dictating the availability of the crime-fraud exception, which requires a showing that the engagement of legal advice was to further a “criminal or fraudulent scheme.” The evidence suggests Manafort and Gates planned to lie and decided that having a lawyer do that lying for them might help shield them from prosecution. But in so doing they made it easy for Judge Howell to find the requisite nexus between the crime—the lies—and the crime-fraud exception. In addition to allegedly laundering money through Cyprus corporations and Hamptons landscapers, Manafort is effectively being called out for laundering his alleged lies through his attorney. (It’s worth noting that it’s not Manafort and Gates’ attorney who is on the hot seat here. That’s largely because the crime-fraud exception applies when the crime in question involves lying to the government and your attorney is merely a conduit for those lies.)
Assuming the indictment’s accuracy, Manafort has been a modern-day version of Henry Hill in Goodfellas: accepting millions of dollars from dictators, funneling that cash through dozens of foreign corporations, and buying up the good life here in the states (one can never have too many $1,000 neckties). High risk, high reward, and … wait, is that helicopter following me? It shouldn’t surprise anyone, then, to see Manafort allegedly playing fast and loose with his own lawyers. Like his former boss, Manafort seems to hold the view that attorneys are hired help, good for emptying ashtrays and passing along lies.
*Correction, Oct. 31, 2017: This piece originally mistated that it would not be an understatement to characterize the attorney-client privilege as the cornerstone of criminal law. It would not be an overstatment. (Return.)