The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
About a month ago, in an essay [here] devoted to an analysis of the Non-Disclosure Agreement that has been at the center of the dispute between President Trump and Stormy Daniels (aka Stephanie Clifford), I remarked that Trump and his attorney, Michael Cohen, faced a conundrum: If they continued to deny that Trump knew anything at all about the Agreement (or the payment made to Daniels pursuant to the Agreement), they risked its invalidation, because Trump is (via a pseudonym) a party to the supposed contract, and parties to a binding contract must, as a near-universal rule, know that they are entering into a contract for there to be one.
But I missed a much more interesting, and important, legal problem entanglement embedded in the denials. I'm no expert on the precise scope of the attorney-client privilege, but I do know this: If a lawyer whom I have hired in the past to represent me in connection with various matters (and whom I expect to hire again in the future) goes off, on his own, without my knowledge or participation, and negotiates a contract with a third-party to which he later claims I am a party and in which he makes various representations on my behalf … that doesn't sound to me like a matter to which the attorney-client privilege applies. And that, of course, could become a matter of some significance, given the recent searches of Mr. Cohen's offices and residences. [Nor is it the only possible reason why Cohen's papers relating to the Daniels affair might be outside the privilege; if there is evidence that the arrangements were designed to violate, say, federal election law restrictions on campaign contributions, the well-known "crime-fraud exception" would render those papers outside the privilege as well]
Oh, what a tangled web we weave!