The attorney-client privilege does not cover statements made by a client to their lawyer if the statements are meant to further or conceal a crime. For this exception to apply, the client must have been in the process of committing a crime or planning to commit a crime. The exception may apply in some types of civil cases as well, such as when a client is planning to perpetrate fraud or another tort.

~Crime-Fraud Exceptions/JUSTIA.COM

To understand the magnitude of the Supreme Court’s decision in Trump v. United States, in which six justices declared a president of the United States has absolute immunity when conducting “official business” delineated in Article II of the Constitution, one need only examine the verbal gyrations Special Counsel Jack Smith employed to comply with the newly imposed standard.  It goes far beyond the question whether a sitting president can be charged with a crime.  Equally important, it inhibits the ability of a prosecutor to submit evidence if it involves communications between the president and his staff, even if that exchange was equivalent to the crime-fraud exception in the case of any other defendant.

It is ironic an administration that threatened to withhold federal funds for jurisdictions described as “sanctuary cities,” where municipal laws protect undocumented immigrants from deportation or prosecution, argued the Oval Office should serve the exact same purpose.  Most legal scholars would contend this violates a basic principle of American jurisprudence, that no person is above the law.  If the CEO of a private business plans a crime with subordinates in his office or corporate boardroom, records of those conversations are permissible evidence.  Why then is the president of the United States, the CEO of a public enterprise, not subject to the same standards.

In his opinion, Chief Justice John Roberts makes the distinction on the basis of what he refers to as “official acts.”  But the Constitution does not delineate acts, Article II, Section 2 is titled, “Powers.”  And where an individual has authorized “power” there is also the potential for “abuse of power,” a fact completely ignored by the 6-3 majority which blessed the “absolute immunity” argument.  How ludicrous is this omission?  Imagine Trump v. United States becoming a defense for the chief executive of any other institution.  Consider the following hypothetical filing in defense of a corporate CEO.

The phrase “no one is above the law” dates back to the Magna Carta.  For centuries we have assumed that meant any person, regardless of their station in life, could be judged on a single set of laws which applied to everyone.  That standard stood until the Supreme Court, in Trump v. United States, laid out a new standard.  Many believe it now gives the president rights and privileges unavailable to other citizens.  However, what if the basic premise “equal justice under the law” is not what changed.  Rather, the Court, probably unintentionally, changed the law repealing what amounts to a broader interpretation of the crime-fraud exception which covers advisors as well as legal counsel.  Should this apply, not just for the president, but for the chief executive of any organization for which the defendant is being prosecuted for an “official act” within his powers under his company’s corporate charter and by-laws?

Our client is charged with conspiracy to sabotage the operations of his largest competitor.  We have presented a job description, drafted by the board of directors and approved at the last stockholders meeting.  Under powers, the CEO is authorized to take such actions as required to ensure the company’s competitive advantage.  Therefore, any discussion related to that authority falls within the definition of an “official act.”

To make their case, the prosecution produced taped conversations and emails between my client and members of his executive team.  Furthermore, every single one of these events took place either in our client’s office or in the corporate boardroom.  How does that differ from the Oval Office or cabinet room?  Since the Supreme Court ruled that communications between a chief executive and his senior advisors are inadmissible, especially those that occur within the privacy of the defendant’s workspace, we demand the same standard apply to our client.

In summary, we ask this court to acknowledge that the basic principle of “no man is above the law” is still the standard and, therefore, when the Supreme Court created a new crime-fraud exception, it applies equally to our client as it does to the president.  Thank you.

When asked about this interpretation of Trump v. United States, Justice Clarence Thomas told reporters he needed some quiet time to ponder the question.  Maybe a week on Harlan Crow’s yacht would be sufficient.  Or as Thomas might refer to it, his “sanctuary.”

For what it’s worth.
Dr. ESP