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Can Trump's Lawyers Testify Against Him?

By William Vogeler, Esq. on June 06, 2017 | Last updated on March 21, 2019

President Trump's personal attorney reportedly has been subpoenaed for information about Russian efforts to influence the 2016 campaign, bringing into focus the reaches of an attorney's privileges against a subpoena.

Can Michael Cohen assert a Fifth Amendment privilege? Can the president's lawyer testify against him? Can the president keep his lawyer from testifying?

Unlike bar exam questions, these are real-life questions. But like the bar exam, the pressure is on for some serious answers. So forget about IRAC and Iran; this is about Russia.

Can an Attorney Plead the Fifth?

Sure, an attorney can take the Fifth, but it may not stick. A judge may have to decide ultimately, but it's not likely in Cohen's case.

Cohen says there is nothing linking him "to this fake Russian conspiracy." So if he has no skin in the game, he has no need for a Fifth Amendment privilege to cover his behind.

Can the President's Lawyer Testify?

Lawyers can and should testify against clients when they are engaged in criminal activity. There are exceptions to the attorney-client privilege, such as the crime-fraud exception and the fiduciary exception.

In Cohen's case, however, there's probably a bigger hole in the attorney-client privilege: waiver. Trump, his advisers, and his attorney have all made very public statements denying improper contacts with Russians about the campaign. The public has a common interest and a very public right to know.

Can the President Stop His Lawyer?

The attorney-client privilege actually belongs to the client, and so the President can assert it. If the exceptions apply, of course, it won't work.

Trump could assert an executive privilege, claiming the subpoena seeks information vital to the national security of the country. But we already saw that movie.

In real life, Richard Nixon actually didn't claim national security in refusing a subpoena to produce the infamous tapes in the Watergate scandal. It didn't end well for the president, however.

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