I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, December 09, 2005

The Dangers of the Rove/Luskin Defense

If speculation is correct that Rove's defense now is that he was reminded of his Plame conversation with Matt Cooper only when Viveca Novak told his attorney, Robert Luskin, about it, this defense has very serious implications, and risks, not only for Rove, but for Luskin, too.

A commentator at Firedoglake, Prof, pointed out quite correctly that the "advocate-witness" rule -- which bars a lawyer from representing a client in a matter where the lawyer is likely to be, or ought to be, called as a witness -- seems to apply here. If Rove's defense is that he remembered the Cooper conversation only once his lawyer reminded him about it after his lunch with Viveca Cooper, then Luskin is not just a likely witness, but a necessary and central one for Rove's defense. In light of that, it is difficult to see how he can continue even now representing Rove in a matter where he apparently plays such a central role as a fact witness.

Beyond Luskin's ability to represent Rove, this defense also seems certain to pierce any attorney-client privilege with respect to communications between Luskin and Rove, at least on the topic of how and why Rove remembered his conversation with Cooper only in late 2004 after he had already testified. To invoke this defense, Rove necessarily has to rely upon the content of his conversations with Luskin -- i.e., that Rove remembered the Cooper conversation as a result of something which Luskin said to him.

That then inevitably raises all sorts of questions -- what did Luskin say to Rove about the Novak conversation? How did Rove respond? Did Rove remember the Cooper conversation right away or only subsequently? Did Rove remember the Hadley e-mail he sent about that conversation then? Was this the first time Rove and Luskin discussed the possibility that Rove was a source for Cooper?, etc.

Rove cannot selectively inject into his defense certain aspects of his conversation with Luskin on this topic and then invoke the attorney-client privilege to prevent inquiry into the rest of his conversation(s) with Luskin on this topic. Once he relies upon some of the content of his discussion with Luskin, he will have waived any privilege with respect to all of the discussions with Luskin about that issue.

This is so by virtue of the "at issue privilege waiver" doctrine. It's not complicated -- it simply holds that where a client discloses some of his communications with his lawyer about a certain issue, he waives any privilege with regard to all of his conversations with his lawyer about that issue. Here's the New Hampshire Supreme Court explaining the "at issue privilege waiver" doctrine under New Hampshire law, which -- at least with respect to the relevant point here -- is consistent with how the doctrine is understood and applied in most, if not all, jurisdictions:

The attorney-client privilege is not absolute. Furthermore, "a client may waive protection of the privilege, either expressly or impliedly." Tasby v. United States , 504 F.2d 332, 336 (8th Cir. 1974), cert . denied , 419 U.S. 1125 (1975) . . . . Implied waiver occurs when the asserting party has put the otherwise privileged communications "at issue" in the present dispute. In Aranson, we limited "the extent of an at-issue waiver of the attorney-client privilege to circumstances in which the privilege-holder injects the privileged material itself into the case." Aranson , 140 N.H. at 370, 671 A.2d at 1030 (quotation

Petition of Thomas Dean
, 97-547 (N.H. 1998) (citations omitted; emphasis added).

This is why, among other reasons, Rove's reliance on this defense is so risky. If his communication with Luskin about Novak's comments is going to be what Rove points to in order to account for how it is (other than perjury) he omitted the Cooper conversation from his first Grand Jury appearance but then subsequently remembered it, then all of his communications with Luskin on the topic of how he remembered the Cooper conversation are going to be fair game for Fitzgerald to explore. And, there is always a fight over how to define "the issue" for purposes of waiver, with prosecutors arguing that it should be defined very broadly, such that Rove-Luskin conversations beyond just the Novak lunch may end up being disclosed.

This is true not just with respect to Fitzgerald's questioning of Rove, but also his questioning of Luskin. Lawyers do a lot of things to protect their clients, especially a career-making client like Rove, but lying in a proceeding like this one in order to protect Rove almost certainly isn't going to be something Luskin will be willing to do.

Thus, relying on this defense ensures that all of the Rove-Luskin conversations on this topic will be disclosed, and it is virtually certain that any unfavorable statements made by Rove to Luskin will then be known. That makes this strategy wildly risky -- unless Rove really is innocent of perjury and genuinely did forget the Cooper conversation until Luskin reminded him of it as a result of Luskin's lunch with Viveca Cooper.

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