Lessons from Robert Mueller: Frauds Against the Government and Privilege

the mueller testimony

Special Counsel, Robert Mueller, testified today before the House Judiciary Committee. Many people throughout Canada and the United States watched with interest, trying to digest his testimony, with specific reflection as to its impact on the United States electoral system, the security of Democracy and of course, the actions of the President of the United States, Donald Trump. From watching some of Mueller’s testimony it struck me that there are some connections to principles in Canadian criminal law (or law in general). As a criminal defence lawyer in Calgary, there are two issues that attracted my attention:  (1) fraud against the Government and (2) privilege issues, including litigation privilege, public interest privilege, work product privilege and investigative technique privilege.

My thoughts about privilege issues arose as a result of the many instances of refusal to answer questions by Special Counsel, Robert Mueller.  Indeed, a family member of mine expressed frustration about the Special Counsel’s unwillingness to answer many questions.  Confronted with this, I thought it important to explain a few things about “privilege” from a Canadian legal perspective. Applying the principles concerning privilege from a Canadian perspective, Mr. Mueller may have been intentionally evasive, but not unethically evasive.

mueller's opening remarks

For your attention, I have included Mr. Mueller’s opening statement to congress below:

fraud against the government

Though I have never, in my legal career, dealt with a case specifically involving “frauds on the Government”, the Criminal Code of Canada contains a specific offence for this type of criminal allegation. Section 121 of the Criminal Code of Canada reads:

• 121 (1) Every one commits an offence who

  • (a) directly or indirectly
    • (i) gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or
    • (ii) being an official, demands, accepts or offers or agrees to accept from any person for himself or another person,

a loan, reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with

• (iii) the transaction of business with or any matter of business relating to the government, or
• (iv) a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow,

whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be;

• (b) having dealings of any kind with the government, directly or indirectly pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which the dealings take place, or to any member of the employee’s or official’s family, or to anyone for the benefit of the employee or official, with respect to those dealings, unless the person has the consent in writing of the head of the branch of government with which the dealings take place;
• (c) being an official or employee of the government, directly or indirectly demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind for themselves or another person, unless they have the consent in writing of the head of the branch of government that employs them or of which they are an official;
• (d) having or pretending to have influence with the government or with a minister of the government or an official, directly or indirectly demands, accepts or offers or agrees to accept, for themselves or another person, a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with
  • (i) anything mentioned in subparagraph (a)(iii) or (iv), or
  • (ii) the appointment of any person, including themselves, to an office;
  • (e) directly or indirectly gives or offers, or agrees to give or offer, to a minister of the government or an official, or to anyone for the benefit of a minister or an official, a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence, or an act or omission, by that minister or official, in connection with
    • (i) anything mentioned in subparagraph (a)(iii) or (iv), or
    • (ii) the appointment of any person, including themselves, to an office; or
  • (f) having made a tender to obtain a contract with the government,
    • (i) directly or indirectly gives or offers, or agrees to give or offer, to another person who has made a tender, to a member of that person’s family or to another person for the benefit of that person, a reward, advantage or benefit of any kind as consideration for the withdrawal of the tender of that person, or
    • (ii) directly or indirectly demands, accepts or offers or agrees to accept from another person who has made a tender a reward, advantage or benefit of any kind for themselves or another person as consideration for the withdrawal of their own tender.
• Marginal note:Contractor subscribing to election fund

(2) Every one commits an offence who, in order to obtain or retain a contract with the government, or as a term of any such contract, whether express or implied, directly or indirectly subscribes or gives, or agrees to subscribe or give, to any person any valuable consideration

• (a) for the purpose of promoting the election of a candidate or a class or party of candidates to Parliament or the legislature of a province; or
• (b) with intent to influence or affect in any way the result of an election conducted for the purpose of electing persons to serve in Parliament or the legislature of a province.
• Marginal note:Punishment

(3) Every one who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Now, if we imagine that the news reports about President Trump are true (admittedly, that might be a stretch) and the Trump Presidential Campaign team met with a foreign power for the purpose of obtaining information to glean advantage over an election opponent, it appears that section 121 of the Criminal Code of Canada could apply. I emphasize the word “could” because I do not wish to engage in any debate about conduct reported by the media, and as such, I make no further comment about whether Mr. Trump, his associates or anybody else would notionally have exposure to Canadian criminal law. Rather, I only highlight this section so that readers might have some tools to contemplate occurrences in the theatre of politics in both the United States and Canada.

privilege: Mueller's refusal to answer

The more important issue for the purpose of this post concerns privilege. To reiterate, Special Counsel, Robert Mueller, refused to answer many questions posed by members of the House Judiciary Committee. One such example concerned questions relating to Christopher Steele and a document titled “The Steele Dossier”.  Mr. Mueller refused to comment on this topic on grounds that the Steele matter was a continuing investigation by the Department of Justice.  Mr. Mueller’s refusal to answer this question and others could flow from four types of privilege: public interest privilege, investigative privilege, work product privilege and litigation privilege.

public interest privilege

By operation of our common law, “public-interest privilege” stops the compulsory disclosure of documents or information when the disclosure is contrary to the public interest. In circumstances where there is an ongoing investigation, such as with respect to Mr. Steele, there is a balance to be struck between the interest of secrecy and public disclosure. Since the Department of Justice appears to be continuing an investigation, it would likely be contrary to the public interest to prematurely divulge information that could compromise the Department of Justice investigation. Accordingly, though I do not know the precise basis for Mr. Mueller declining to answer questions about Mr. Steele, it appears “public interest privilege” is an ethical basis for his refusal.

Notice, depending on the circumstances, the exercise of privilege could shift in favour of disclosure over secrecy. This could occur at some point after the Department of Justice investigation concludes.

litigation privilege and work product privilege

Litigation privilege protects documents or information where the dominant purpose of the record or information is for the purpose of litigation.  For instance, if the Department of Justice created a record for the purpose of rendering advice to the Attorney General outlining its opinion as to whether charges should be laid, that record could be protected by litigation privilege. Records created to answer inquiries made by an agent for a lawyer or created for the purpose of giving legal advice could also fall into the sphere of “litigation privilege”.

Work product privilege is an adjunct of lawyer litigation privilege”. Work product privilege -- or "lawyer's brief privilege” protects all work product that is "rooted in analysis, not investigation".  Put another way, work product privilege concerns "fruits of the mind not the feet”.  This species of privilege arises when a lawyer prepares "opinions, theories, analyses of the case, research, internal notes, memoranda or correspondence in the course of employment”.

By way of example, the legal opinion based on the investigation to lay or not to lay charges in the Steele case could fall under the purview of litigation privilege and work product privilege. For the purpose of Mr. Mueller’s testimony, it appears there were different types of privilege operating alone or together at various times.

investigative technique privilege

In Canadian criminal law, I understand that investigative technique privilege relates to special kinds of techniques used by law enforcement during the course of an investigation. This privilege exists to protect the “technique” used by police (such a method of surveillance), not the information procured by use of the method. For example, if the police are using a special type of vehicle to conduct surveillance in a drug trafficking case, it may be that they will try to invoke investigative privilege to keep secret the type of conveyance used to capture the evidence.

Notice, investigative technique privilege may closely pair with public interest privilege; for it may be in the public interest to keep the particular investigative technique private so as to protect future law enforcement investigations.

Though it is more difficult to ascertain whether Mr. Mueller’s refusal to answer was as a result of investigative privilege, it is reasonable to think that this species of privilege applied to his decision.

hire a lawyer: you will almost always be protected by solicitor-client privilege

The taxonomy of legal privilege is diverse. Beyond the privileges discussed, there are other powerful types of privilege: solicitor-client/attorney client privilege, informer privilege (which could apply to the Steele case), negotiation privilege, settlement privilege and spousal privilege. 

David Chow is a Calgary criminal lawyer who takes privilege issues extremely seriously.  All Calgary criminal lawyers and lawyers practicing in all disciplines throughout Canada are bound by a duty of loyalty flowing from solicitor-client privileges. For a free consultation with a lawyer who will protect your privacy, contact David Chow at 403.452.8018.