Trump Lawyer’s Message Was a Clue for Mueller, Who Set It Aside – The New York Times

Analyzing the episode begins with trying to make sense of what Mr. Dowd was saying in his circular, halting way, legal experts said.

His message might be interpreted “as a thinly veiled offer of a pardon conditioned on Flynn keeping his mouth shut,” Mr. Sklansky said.

If so, he said, that would amount to obstruction of justice, and any conversations between the president and Mr. Dowd about sending such a message to Mr. Flynn would no longer be protected by attorney-client privilege because they would be considered part of a crime. In that case, a judge might have ordered Mr. Dowd to comply with a subpoena to disclose the discussions.

However, Mr. Sklansky stressed, all of that depends on two things that remain unclear: whether that is the correct interpretation of Mr. Dowd’s remarks and whether Mr. Trump in fact told him to send that message with corrupt intent. And because Mr. Dowd would certainly have invoked attorney-client privilege to avoid voluntarily answering questions about those interactions, he said, it would mean a lengthy subpoena fight in court for his testimony.

It was probably not worth it for Mr. Mueller’s investigators to take on that challenge — especially if all they had to make the case to a judge were their suspicions about a difficult-to-parse statement, said Samuel W. Buell, a former federal prosecutor who now teaches criminal law at Duke University.

“It’s a little bit of a Catch-22 because the privilege is so carefully protected by the courts that the exceptions only kick in when you can show they apply,” Mr. Buell said. “How can you show they apply before you have that information? You have to have a circumstantial case already that someone and their lawyer were engaging in obstruction before you can get to the conversations between them.”

Mr. Buell also noted that it was common for defense lawyers to fish around for information that might be helpful to their client, and while Mr. Dowd’s comments may have walked “somewhat dangerously close to the line,” Mr. Buell’s assessment was that “it strikes me as veiled enough that it’s nothing a prosecutor could base a witness-tampering charge on.”

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