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  • Richard Kerger

Trump – What is Going on?

I have been watching the pundits and talking heads go on and on about Trump and his rights. What is surprising is that some of them got it right and some of them got it very wrong.

For example, Mr. Giuliani said that Mr. Trump had a right to know if he was a target of a Grand Jury investigation and almost uniformly the pundits said “No”. However, it is the policy of the Department of Justice to advise a Grand Jury witness of his or her right if he is the “target” of the investigation. There is even a form letter to be sent to the “target”.

Accordingly, since the Special Prosecutor was attempting to secure an interview with President Trump, I believe there was an obligation to tell him if he was a “target”. And what we don’t know is whether that in fact occurred. It is also true that one reason it might not have occurred is that the President was not in fact the “target” of the investigation.

On the other side of the ledger, the pundits got it exactly right when they said the supposed “retainer” used to repay Michael Cohen’s payment to Stormy Daniels was improper. First, it suggested that there was no legal relationship and therefore there is no attorney-client privilege between Trump and Cohen. It is certainly the case that someone can have a lawyer representing him but use that lawyer to do non-legal things and not have the privilege attach.

It is equally clear that notwithstanding all of the screaming by Mr. Giuliani that it is common for lawyers to be pulled into criminal conspiracies and thus be subjected to search warrants, registers and wire taps. People are not entitled to “hide” their criminal conspiracies behind the attorney-client privilege if in fact the lawyer is part of the criminal enterprise. It is equally clear that if he or she is just serving as a lawyer that the communications are privileged.

Representing the President is an incredible task in any administration. The time to investigate and reflect on what you are going to say does not exist. Therefore you are better to be vague when initially speaking out and only come to conclusions when you have had the chance to do the work which must be done.

For a lawyer to President Trump watching him speak in public is a bit like watching a 4 year old child tapping on the end of a 500 pound bomb. He may not make it explode but he certainly is in a position to do it!

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