“waiving privilege” and the crime-fraud exception

What are the implications of Trump “waiving privilege” to the tape? Spoiler: None. Trump didn’t “waive” privilege because the tape isn’t privileged under the crime-fraud exception.

1/ Attorney-Client privilege is a rule that protects client confidentiality. For material to be privileged, it must be an actual client communicating with a lawyer about legal advice. The Crime-Fraud exception says the privilege can’t be used to cover crimes.

2/ So, for example, telling your lawyer you committed murder IS privileged. Discussing with your lawyer how to hide the body is NOT. When law enforcement seizes material that might be privileged, a “taint team” screens the material. The prosecutor sees only unprivileged material

3/ When Cohen’s home and office were raided by the FBI, Trump and the Trump Org claimed that the bulk of what was taken was sensitive legal documents protected under the attorney client privilege.

4/ The court in Cohens case agreed to appoint a Special Master (SM) to determine what is and isn’t privileged. The procedure went like this: The parties and the SM were given copies of all documents. The SM and the parties did their own independent review of the materials.

5/ If there was a disagreement that they couldn’t resolve (for example, if the SM said something wasn’t privileged but Team Trump claimed it was) the parties would appeal to the judge, who would make the final determination.

6/ After the first batch of documents were reviewed, there were a few disagreements. So the Trump Team were prepared to appeal to the judge. The problem was that the judge ruled that the appeals had to be public—with redactions for the material which might be privileged.

7/ The Trump Team decided therefore not to appeal. So they challenged none of the SM’s determinations. This tape is a recording of illegal activity. Therefore, the recording would not be considered privileged.