Congress may punish him for complying with his duties under the law - actions it has heretofore celebrated - if the House Judiciary Committee follows through with its threat to hold him in contempt for adhering to his obligations owed to his former client, and safeguarding the attorney-client and executive privileges he is obligated to protect.
Under the District of Columbia Rules of Professional Conduct, the "Attorney-client privilege is that of the client and not of the lawyer." The rule further notes that "The client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client privilege and work product doctrine." Accordingly, McGahn has no choice but to honor the privileges his former client owns.
Under the Contempt of Congress statute, McGahn can only be prosecuted if he "Willfully" fails or refuses to testify.
Congress itself has recognized the attorney-client privilege when it approved the Federal Rules of Evidence, which hold the privilege virtually inviolate unless certain, limited circumstances exist.
There is strong evidence that President Trump - by initially waiving the attorney-client privilege and failing to assert the executive privilege - waived both, at least to some extent.
The law on attorney-client privilege is very fact-sensitive, and the breadth of the executive privilege is not entirely clear.
Instead of holding McGahn in contempt, it should first seek a judicial determination on whether and to what extent the privileges have been waived.
https://www.realclearpolitics.com/articles/2019/05/21/a_better_alternative_to_holding_mcgahn_in_contempt_140381.html
Under the District of Columbia Rules of Professional Conduct, the "Attorney-client privilege is that of the client and not of the lawyer." The rule further notes that "The client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client privilege and work product doctrine." Accordingly, McGahn has no choice but to honor the privileges his former client owns.
Under the Contempt of Congress statute, McGahn can only be prosecuted if he "Willfully" fails or refuses to testify.
Congress itself has recognized the attorney-client privilege when it approved the Federal Rules of Evidence, which hold the privilege virtually inviolate unless certain, limited circumstances exist.
There is strong evidence that President Trump - by initially waiving the attorney-client privilege and failing to assert the executive privilege - waived both, at least to some extent.
The law on attorney-client privilege is very fact-sensitive, and the breadth of the executive privilege is not entirely clear.
Instead of holding McGahn in contempt, it should first seek a judicial determination on whether and to what extent the privileges have been waived.
https://www.realclearpolitics.com/articles/2019/05/21/a_better_alternative_to_holding_mcgahn_in_contempt_140381.html
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