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In the investigation related to Mar-a-Lago, the Justice Department is seeking to pierce attorney-client privilege relating to several bits of testimony and discovery items they're seeking from Trump's attorney, Evan Corcoran. Such a move isn't necessarily unprecedented, but it is extraordinary.

Legal Eagle had a piece on this noting that while this move is extraordinary, it's becoming less extraordinary when it concerns lawyers for Trump. Per Legal Eagle, it seems that Corcoran did not wholly trust the information being given to him by his client and engaged in the notable move of recording his conversations. Thus, Corcoran can probably provide testimony which will indicate that he said things that weren't true, but did not knowingly lie because the basis for the information he conveyed was based on the information his client had provided to him. Presumably, because he lacked mens rea, he could not be culpable.

However, this lack of mens rea may not be applicable to other attorneys whom have worked for Trump. Presuming a court permits piercing the attorney-client privilege for those attorneys, could those attorneys continue to impede the investigation by asserting their 5th amendment rights?

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Can an attorney plead the 5th if attorney-client privilege is pierced?

Yes. But if the prosecutor offers the attorney "use immunity" for the testimony (i.e. a binding promise that the attorney's own testimony won't be used against that attorney), then the 5th Amendment privilege can be overcome as well.

In other words, the prosecutor can unilaterally force an attorney to waive his or her fifth amendment rights by granting the attorney immunity from having that testimony used against the attorney, even if the attorney doesn't want to do that.

This is established, for example, as noted in the comments by bdb484, by the case of Kastigar v. United States, 406 U.S. 441, (1972) (“The United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity”).

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    Given an adequate assurance of immunity, the witness must testify. The Fifth Amendment is a protection against convictions based on compelled self-incrimination; it is not a license to avoid testifying simply because you don't want to. Kastigar v. United States, 406 U.S. 441, (1972) (“The United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity”).
    – bdb484
    Commented Apr 5, 2023 at 18:45
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    I'm not a lawyer and stopped by because of the HNQ status; I'm just curious what "can be overcome" looks like roughly. Is it possible to add a few more words for readers like me to better understand what some of those "overcoming the fifth" strategies look like? I suppose I could ask it as a separate question but it's probably so obvious to most of the community it may not rise to the level of a new and interesting question. Thanks!
    – uhoh
    Commented Apr 5, 2023 at 23:28
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    @ohwilleke you have a typo, firth instead of fifth in the second paragraph, can't suggest an edit without changing other things which I don't think is needed. Flag this comment as No Longer Needed when the typo is gone :) Commented Apr 6, 2023 at 8:35
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    @uhoh - Please read this first. After this procedure is invoked, the cheese moves. It becomes criminal for the witness to fail to provide the testimony or other information requested, while testifying stops posing any self-incrimination risk - the opposite of the usual situation. The "fifth" protects against self-incrimination only, so further claiming it becomes empty words. Commented Apr 6, 2023 at 8:48
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    Describing the procedure as forcing an attorney to waive their fifth amendment rights doesn't quite sound accurate. The attorney still has their fifth amendment rights and hasn't waived anything, but the rights cease to apply to the situation. Commented Apr 6, 2023 at 13:52

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