Dahlia Lithwick and Scott Pilutik write: 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. [Continue reading…]