Trump’s Attorney Doesn’t Understand ‘Privileged’
In a statement Thursday after James Comey testified in an open Congressional hearing to the Senate Intelligence Committee, President Donald Trump’s attorney Marc Kasowitz claimed that the former director of the FBI “admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the president.”
However, the legal definition of a “privileged” communication is one that only exists between protected sources such as that “between an attorney and client, a husband and wife, a priest and penitent, and a doctor and patient.” The President of the United States is not party to a legally binding protected status of privilege in regard to all communications with James Comey or any member of the FBI.
The citing of privileged status is generally invoked in order to protect confidential information that might harm one or both parties. However, the FBI does not have any formal agreement in place with the Justice Department or the president stating specifically that unclassified conversations and events are “privileged”.
Forcing someone to be in a room alone with you, as Trump did to James Comey when he requested that Attorney General of the United States Jeff Sessions and son-in-law Jared Kushner leave the room, is not in itself an action that declares a conversation is privileged. It might be described as “private” or “confidential”, but not “privileged”.
Furthermore, Comey’s recollections of the incidents described in his testimony during today’s hearing are very much a personal, as well as a professional, experience. Since the conversations were neither classified, nor recorded in a way that would make them classified, he has every right as an American citizen to recollect and share the conversations, including sharing his own contemporaneous notes. While the notes he wrote on FBI letterhead or under an FBI email header may belong to the FBI, James Comey’s personal and professional experiences do not belong to anyone but him.
Trump himself at the time did not indicate any need for caution or secrecy, only inviting Comey to dinner. If this were intended to be a confidential, secure, and privileged conversation the president could have, and should have, taken steps to announce to his staff that the conversation needed to be secure.
Despite Trump’s reputation for simply picking up the phone and chatting with world leaders, conversations between heads of state generally involve several versions of dossiers; a review of points of etiquette and current news; several aides and translators; and monitoring by the National Security Council. One would expect that truly “privileged” conversations in the U.S. would also have some sort of formal vetting.
There is also the troubling issue that in a tweet on May 12th President Trump alluded to the possible existence of tapes.
Both Trump and his various mentors, most infamously Roy Cohn, have been known to record every call to their businesses. Trump was rumored to have listened in on the conversations of hotel guests from a satellite switchboard in his suite.
It is legal in the District of Columbia to record audio of a conversation with the consent of only one party — which means Trump would have been within his legal rights to record the conversation.
In 2016, BuzzFeed News reported that Trump allegedly eavesdropped on conversations between staff members and possibly guests at his Palm Beach resort, Mar-a-Lago. The story reveals that club staff members were aware that the real-estate mogul would listen in on calls made using Mar-A-Lago landlines.
One individual said, “It was acknowledged that when he was at the property there was a likelihood of him listening in on your call,” and another alleged that Trump “could pick up the phone in the bedroom and listen to any conversation that was going on.”
Roy Cohn’s former secretary, Christine Seymour, listened in all his calls, kept logs full of transcriptions (three notebooks a day), and recorded many conversations. Cohn, Trump’s mentor and attorney for many years, was disbarred for flagrant ethical violations.
Trump has also been known to make phone calls with an assumed identity, and has been investigated by the FBI for possibly threatening a D.C. lawyer’s family by phone.
After Donald Trump tried to throw a 90-year-old widow off her property in order to convert it to limousine parking by claiming “eminent domain”, Robert VerBruggen, deputy managing editor at National Review, said, “[Trump] has a track record of using the government as a hired thug to take other people’s property.”
Given Mr. Trump’s long and documented history of spying, dissimulation, and using the government as a personal weapon, Marc Kasowitz gives a whole new meaning to the term “privileged” in this context.
