Finland, We’re So Sorry

Here’s a piece from Harry Litman in today’s WaPo on why attorney-client privilege doesn’t apply to Rudy Giuliani and Trump.
 

Rudolph W. Giuliani responded to the subpoena he received this week from the House Permanent Select Committee on Intelligence with characteristic bravado.
As if the decision were his alone under the law, Giuliani tweeted that he would give “appropriate consideration” to the subpoena “signed only by Democrat Chairs who have prejudged this case.”
 

Giuliani, President Trump’s personal lawyer, has been proffering quarter-baked legal claims for too long.
His argument for resisting the subpoena is feeble. His real choice is whether to litigate — advancing the Democrats’ argument that Trump and his allies are obstructing their probe — or capitulate — and hand over important evidence that could help support an article of impeachment.
 
Any executive privilege claim is off the table. No court ever has extended the doctrine to communications with private non-government actors such as Giuliani. Moreover, Giuliani undisputedly represents Trump in his personal capacity, not his official capacity, which further invalidates any claim of executive privilege.
 
***
 
As frequently with Giuliani, it’s not clear if he is misinformed or is being mendacious. But what is clear is that he has no tenable claim to defend the subpoena on that basis.
 
The attorney-client privilege exists, as the Supreme Court has made clear, to encourage clients to make full disclosures to their lawyers. Accordingly, the privilege covers confidential communications between lawyer and client and other privileged persons for the purpose of obtaining legal advice. (And it’s the client — here Trump — who must invoke it.)
 
First problem for Giuliani: He has disclaimed even acting as Trump’s lawyer in his work in the Ukraine. He rather saw himself as a sort of free-wheeling private ambassador. As he put it, “I’m not acting as a lawyer. I’m acting as someone who has devoted most of his life to straightening out government.”
 
But assuming the court were nevertheless to decide that he was acting as a lawyer, Giuliani next runs into an immediate buzzsaw. None of the communication between Team Giuliani and the Ukraine government was for the purpose of providing legal advice to Trump.
 
Giuliani clearly had a political mission of getting Ukraine to provide dirt on former vice president Joe Biden and his son, Hunter; no amount of tortured reasoning could convert that effort into confidential communications made for the purpose of providing legal advice to Trump.
 
Even the direct communications between Trump and Giuliani don’t appear to have been made for the purpose of providing legal advice. To the extent they consisted of Trump’s orders dispatching Giuliani to do his bidding in Ukraine, no privilege attaches.
 
There’s more. The attorney-client privilege is subject to an exception — the “crime fraud exception” — for communications related to the commission of a crime. Here Giuliani’s conduct, as directed by Trump, arguably relates to a course of possible criminal conduct such as extortion or a campaign finance violation.
 
[And yes, Virginia, there’s more]

Harry’s a very knowledgeable guy – not some family lawyer from East Bumfuck, WV.  

Oh my GOD!!!  Alexandra Petri, who has been absolutely on fire the last week, has outdone herself.

“There are different ways to bake the cake, depending on what sort of cake you want. Different flavoring, different temperatures, different ingredients yield different types of cake, and the president as the master baker is testing recipes and deciding what type of cake he wants.”
— a senior official, explaining President Trump’s approach to impeachment to The Post on Monday.

For the last time, this is all part of the plan. Getting himself impeached is actually a strategic triumph for President Trump, and anyone who thinks otherwise is just not playing chess in enough dimensions. Consider what is the greater mark of strategic genius: to mire yourself and your administration in an endless series of idiotic and pointless controversies, often rife with misspellings, damaging your standing at home and abroad, or to NOT do that? If you say the second, you are a fool. This is all part of the plan. Actually, this is good. Actually, this is great.

He is like a master baker, preparing everything just exactly the way he would like it. You can’t make a cake without breaking eggs! That is why he has broken all the eggs and will not stop breaking eggs until there are no eggs anymore. He is baking the chess pieces into a cake, and it is brilliant, and that is why no one has thought to do it before. If it looks messy, if it looks like he is covered in batter and surrounded by trolls and incompetents and family members (but I repeat myself) — well, that is not correct. I’m embarrassed that you would think that maybe he did not know what he was doing, just because he looked and sounded and acted like he did not know what he was doing. Really, the fool here is you.

Ah, the genius of this man! Moriarty wept, and also the Borgias, and also Jesus, although that may have been for unrelated reasons. His is the shrewdness of Alexander the Great, cutting through the Gordian knot. He has the vision to cut through things, even if the things he is cutting through say “THIS IS LOAD-BEARING, DON’T CUT.” He dares to push the buttons labeled “DO NOT PUSH: WON’T DO ANYTHING GOOD, AND WILL RELEASE OPOSSUM.” There is no puzzle, norm or rule of whatever degree of complexity he cannot immediately dismantle with a single movement.

[Continues – and gets better]

 

Sturg,
Love John Hiatt (even with – maybe because of – that distinctly idiosyncratic voice) and love the song.  And Sonny Landreth – Jesus Christ can he play. Saw Hiatt in a joint down in the Flats in Cleveland about 20 years ago – what a great writer and performer.  I have to admit  like the BB King/Clapton version of that song although the rewrite is never quite as good as the original.  Oh, and maybe Leo was onto something with those guitars.