Donald Trump’s Russia lawyers may have just unwittingly waived privilege

The attorneys representing Donald Trump in the Russia scandal haven’t exactly put their best foot forward thus far. Two of them have sent unhinged late night email tirades to strangers. One of them has accused a reporter of being on drugs. One of them has already been fired. Now it appears they may be causing real tangible damage to Trump’s legal prospects, because it’s possible they just unwittingly waived privilege by discussing their representation of Trump with the media.

It all began when the Wall Street Journal published a story detailing how some of Donald Trump’s Russia lawyers had pushed aggressively for the ouster of his son-in-law Jared Kushner from the White House, even going so far as to write up the verbiage by which Kushner would resign and scapegoat himself (link). It’s unclear where this leak came from. One of Trump’s lawyers, John Dowd, decided to make clear to the WSJ that he objected to the idea when the others floated it. This was an apparent attempt at publicly demonstrating his personal loyal to the Trump family. But legally, it’s highly problematic.

I’m not an attorney or legal expert, but you don’t have to take my word for it. Constitutional law expert Deepak Gupta has pointed to the Trump legal team’s decision to publicly discuss its internal disagreements on legal strategy, and he’s asking aloud whether it constitutes a “waiver of privilege” (link). Based on my own conversations with legal advisers, waiver of privilege can be tricky to specifically pin down. But it’s not the first time in which the Trump team has gone there.

Donald Trump’s own surreal comments after firing FBI Director James Comey arguably waived privilege between Trump and Comey, and some observers believe Comey subsequently felt more free to discuss his private interactions with Trump during his testimony before Congress. We’ll see what comes of this latest apparent privilege blunder by Trump’s legal team.

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