I don't see Trump winning this battle if it were to get to the SCOTUS. Kavanaugh would have to recuse himself leaving the court at best split 4-4. And I think Roberts would not let Trump get away with it.
The Clinton administration litigated and lost both privilege claims in defending against the independent counsel investigations. When the U.S. Court of Appeals for the D.C. Circuit ruled unanimously on the application of the attorney-client privilege, it did so in no uncertain terms:
Quote:
To state the question is to suggest the answer, for the Office of the President is a part of the federal government, consisting of government employees doing government business, and neither legal authority nor policy nor experience suggests that a federal government entity can maintain the ordinary common law attorney-client privilege to withhold information relating to a federal criminal offense.
This is not to say that, when called to interview with prosecutors, a White House counsel would agree to answer any and all questions. It falls to his or her attorney to negotiate an acceptable scope and focus for the interviews. In preparing for those discussions, the counsel and his or her lawyers can certainly take into account the constitutional and other reasonable concerns of the president’s personal counsel. The Times story does not provide detail about the extent to which McGahn’s own counsel consulted with the president and the president’s private counsel, except to report that the president raised no objection to the interviews. In the end, however, the White House counsel is a government employee called upon to negotiate in good faith the terms of cooperation with criminal justice authorities.
AI
