The Anti-Privilege of Being Donald Trump's Attorney
SBF is expected to lose his smartphone; special counsel Jack Smith is hurrying (by federal prosecutor standards); Trump's lawyers face questions about the extent of attorney-client privilege
Welcome to another week of Serious Trouble! This week’s episode is free to all listeners (though if you want last week’s deep-dive on developments in the Fox-Dominion litigation, we encourage you to sign up as a paid subscriber to hear it).
We start out by talking about Sam Bankman-Fried. Yet another of his top lieutenants has pleaded guilty to crimes including wire fraud and commodities fraud, and in the plea documents we learned more about SBF’s ill-advised campaign finance schemes. Plus, prosecutors and his own lawyers are proposing an agreement to further restrict SBF’s access to technology — including taking away his smartphone.
Then we spent most of this episode looking at Donald Trump’s legal affairs. There are signs that special counsel Jack Smith is trying to move swiftly toward charging decisions — though “swiftly” means something different to a federal prosecutor than to most people, and legal wrangling over efforts to pierce Trump’s attorney-client privilege could delay matters. We talked about why some of Trump’s conversations with lawyers might not be privileged, and what it means for the investigation that prosecutors are so interested in his dealings with his lawyers.
And then we talked about different kinds of privilege, relating to Trump’s former role as president.
Trump says he can’t be sued for inciting violence on January 6 because remarks he made on the White House lawn were given in his official capacity. The Department of Justice narrowly disagrees, which is surprising — normally, DOJ pretty zealously defends privileges of the presidency, even when that’s meant the Biden DOJ saying Trump can’t be sued for defamation.
Finally, we looked at Trump’s assertion that executive privilege bars Mike Pence from testifying before a grand jury regarding events related to January 6. In doing so, he faces a legal problem we’ve discussed before: How can you assert executive privilege against the executive branch?
We hope you enjoy the episode.