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On September 27, 2018, Dr. Christine Blasey Ford testified before the US Senate Judiciary Committee about her memory of an alleged sexual misconduct, which occurred in 1982, by someone she remembered to be the SCOTUS nominee Brett Kavanaugh.

This is not a question about the misconduct, her credibility, or the quality of her memory. So, please, don't jump to answer it as if it were. The question is exclusively about her lawyers' role in that testimony.

Here's a few facts related to her travel to testify:

  • It came out during the testimony that she traveled to the destination of the testimony by air.
  • She testified that she did not know that there was an offer for the Senate committee to come to hear her story in California (her state of residence).
  • It's been widely reported that her testimony was delayed by 4 days to a week because her lawyers indicated that she was afraid to fly. This delay produced a one-week delay in the confirmation process of a SCOTUS judge.
  • During the testimony she characterized this as a miscommunication, and the delay, as a misunderstanding.
  • Her lawyers tried to shut down this line of inquiry as protected by the attorney-client privilege because it was related to what her lawyers told her of what was told to them by the Senate functionaries responsible for arranging the testimony.

My question is in what legal jeopardy would the lawyers be if Dr. Ford were given a transactional immunity. Since the attorney-client privilege is with the client, it does not spread to the lawyers if the client is immunized, or does it? If it turned out that they misled the client (deliberately or not) about the Senate's offer to expedite the testimony, this would have been an act of obstructing a nomination of a SCOTUS judge. Should this result in a delay in the confirmation (assuming the confirmation does go through), this delay may result in judge Kavanaugh not being one of the presiding judges on one of the cases heard by the SCOTUS. Would this not be an obstruction of justice (quite literally)?

And while Dr. Blasey Ford characterized this as a misunderstanding, this is her view on the facts. But if this results in an indictment, wouldn't the judgement of how to view the facts be with the jury (rather than Dr. Ford -- a witness)? She would be an immunized witness compelled to testify, would she not?

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    If delaying a judicial nomination were held to constitute obstruction of justice, most of the legislative branch and their staff would probably be guilty of it.
    – phoog
    Oct 1, 2018 at 16:37
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    @phoog that's the against argument. I probably don't need to tell you that there is the pro argument. It is the legislator's job to expedite or slow down the process based on how they choose to exercise their power of advice and consent. It is not the lawyers' job to obstruct Senate by lying to their clients.
    – grovkin
    Oct 1, 2018 at 16:40
  • IANAL, first need to establish that the lawyer lied to their client. Is there evidence of that? I seem to recall Grassley saying, "We would have come to you (in California)" as contrasted with 'the committee's republican investigator would have come to you (in California)'. Two very different things (particularily in light of the investigator's twitter statements regarding his bias)
    – BobE
    Oct 1, 2018 at 18:17
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    Maybe you'd like to ask a more general question about whether a client can be ordered to testify about privileged communications with a lawyer, if the client is granted immunity of some sort.
    – Nate Eldredge
    Oct 1, 2018 at 22:41
  • @NateEldredge I did think about asking that question as well. But it seems like it should be a separate question. In fact, given the considerations outlined in phoog's answer, this would not matter... unless, of course, the answer is that they cannot be. But it's still a separate consideration because I think it's clear, in this case, that the most credible view of the facts is that the lawyers misinformed the client.
    – grovkin
    Oct 2, 2018 at 1:05

2 Answers 2

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To consider obstruction of justice, it's not necessary to consider the impact of a delayed nomination on the work of the Supreme Court. 18 USC 1505 provides that a felony has been committed by

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress

Since there's no suggestion of threat or force, the issue would be whether the lawyers' actions were corrupt, and whether the delay constituted an impediment. I am doubtful that either could be established. Furthermore, section 1515(c) says that

This chapter does not prohibit or punish the providing of lawful, bona fide, legal representation services in connection with or anticipation of an official proceeding.

Returning to your theory about preventing or delaying the confirmation of a nominated justice, there does not appear to be anything in the law that criminalizes this. The court having 8 members does not prevent it from hearing any case unless 3 of the 8 have recused themselves from the case, as the Supreme Court's quorum is six justices.

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  • re: you last point. That remains to be seen. The SCOTUS session started today with 8 judges. Should Kavanaugh get confirmed after a case is heard, but before a decision is made, there is a few possible scenarios. They may have to rehear the case so Kavanaugh could ask questions and weigh in. Kavanaugh could recuse himself from decision on the cases which have already been heard. Kavanaugh can vote based on the record of the arguments as they have already been made. None of these scenarios is without a problem. The problems which would thus occur would be due to the delay.
    – grovkin
    Oct 2, 2018 at 1:37
  • In any event, I'm certainly not aware of any precedent where an action that delayed the appointment of a judge was prosecuted under this statute. It would be a novel legal theory to say the least, and the defense would surely argue that Congress never intended for the statute to apply in that way. Another point is that if the Senate were really worried about the delay, they could have subpoenaed Ford, or alternatively, gone ahead without her testimony.
    – Nate Eldredge
    Oct 2, 2018 at 2:01
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    @grovkin: I believe that the standard practice on the Supreme Court has been #2: if a justice was not on the court at the time that arguments were heard, then that justice does not participate in the decision. (It's not usually thought of as a "recusal".)
    – Nate Eldredge
    Oct 2, 2018 at 2:04
  • @grovkin sure, the delay could cause problems, but can you point to anything in the statute that defines an offense related to that sort of problem? I don't see it.
    – phoog
    Oct 2, 2018 at 2:37
  • @NateEldredge I do not see an offense in the statute that would apply in the case where someone delayed the appointment of a judge, so it's not even clear to me what legal theory would lend itself to such a prosecution, regardless of its novelty.
    – phoog
    Oct 2, 2018 at 2:39
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There is no such thing as transactional immunity to the attorney-client privilege. This is strictly a 5th Amendment concept. You can't immunize a witness to force a witness who is a client to testify about attorney-client privileged matters.

A client can voluntarily waive the attorney-client privilege, but cannot be compelled to do so, unless the client is bringing an affirmative claim premised on attorney-client privileged matters (generally a claim for legal malpractice), or an affirmative defense premised on reliance on advice of counsel.

Nothing in this fact pattern suggests any misconduct by the attorneys in question under any ethical rule or statute.

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