According to a former White House counsel under President Barack Obama, the planned counter-report to Attorney General Bob Barr's redacted version of Robert Mueller's investigation into president by Trump's legal team will open those attorneys up to being called before Congress -- but without the shield of attorney-client privilege.
Writing at Lawfare, attorney Bob Bauer -- who now teaches at NYU's School of Law -- said the counter-report could end up creating even more problems for the embattled Trump.
Noting that Trump legal advisor Rudy Giuliani has confirmed, "that the president’s lawyers have authored a 'counter' to Mueller, focusing on the issue of the president’s involvement in obstruction of justice," Bauer said that might be a mistake.
"With [AG Bob} Barr and Mueller testifying [before Congress], the president’s lawyers should also have to appear and answer questions under oath about their own document—if indeed that document is released. The counter-report, for this reason, would probably not be the public relations masterstroke that Giuliani may have in mind," Bauer wrote.
"The president’s lawyers have apparently constructed a report setting forth factual claims for public consumption, and this counternarrative warrants testing," he explained. "On what grounds will they assert that their version of events is more dependable than the official narratives that they intend to refute? Legitimate questions include the range of sources on which the president’s legal team relied for their claims: Whom did they interview, and what documentation was available to them? This information, including documents, should be made part of the public, congressional record."
"The first problem they would face becomes immediately apparent from the nature of this counternarrative. It will not be a document prepared in anticipation of litigation, or for legal defense of the president. It will be crafted for political and public relations purposes—which is all the more indisputable now that the president will apparently be responding to a Mueller report that did not affirmatively conclude that the president violated any law, passing on any final judgment on the obstruction issue," he continued. "It will not help for the lawyers to insist that the counter-report discloses only facts, not client communications, and, therefore, that their communications with their client remain privileged. Because the facts arise from and expose those communications, their disclosure would be inconsistent with the claim of privilege."
Bauer went on to explain that, with privilege stripped, Trump's attorneys would be subject to answering questions that they might have avoided without the counter-report.
"Disclosure even for self-serving purposes, where the lawyers pick and choose what to reveal, still constitutes a waiver. This privilege is always narrowly construed," the law professor explained.
With this privilege out of the way, the president and his legal team would then be subject to congressional demands for a full explanation of all the bases for the factual assertions in their report," he wrote. "The lawyers might be able to protect interview notes containing mental impressions, but other information, such as the identity of those they interviewed and documents on which they relied, would be fair game."
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