FBI Director Kash Patel just dropped a bombshell that should horrify Americans of all political stripes. In 2022 and 2023, Jack Smith, the illicitly-appointed “special counsel,” and the Biden Justice Department subpoenaed toll records of calls from Patel and now-White House chief of staff Susie Wiles. Both were private citizens, and this surveillance continued while Wiles was co-managing President Trump’s election campaign. The FBI even wiretapped a call between Wiles and her lawyer in which the lawyer, knowing of the wiretap, failed to inform Wiles. This conduct is ghastly, and there must be dire legal consequences.
The attorney-client privilege is one of the most sacred legal principles in the Republic. To represent their clients effectively, lawyers need to be able to engage in frank discussions. Clients must feel secure in the knowledge that what they say cannot be used against them. The privilege is so sacred that, in Swidler & Berlin v. United States (1998), the Supreme Court held that it survives the death of a client under the Federal Rules of Evidence.
The lawyer who colluded with the FBI to record his client should be disbarred. Rule 1.6 of the Rules of Professional Conduct in every jurisdiction imposes strict limitations on disclosure of confidential information by attorneys, such as instances where a client is threatening to commit a serious crime. That obviously wouldn’t apply here. Further, Rule 1.7 delineates strict guardrails to safeguard clients from conflicted lawyers. A lawyer cannot represent both sides. That would be antithetical to the adversarial process.
For some reason, Wiles’ lawyer agreed to let the FBI wiretap the call. A lawyer working with the FBI against their client’s interests would be a clear-cut violation of this rule. And that’s not the end of potential ethical violations: Rule 1.4 requires attorneys to communicate pertinent information to their clients (which clearly didn’t happen here), and Rule 8.4(c) prohibits behavior involving dishonesty and misrepresentation by omission. It’s hard to think of a more glaring omission than not telling your client that the FBI is listening to what you think is a privileged conversation.
Wiles also could sue the lawyer for malpractice, as well as the lawyer and the FBI agent(s) under the Wiretap Act. This suit would be appropriate if the FBI failed to minimize the interception of privileged communications. Title III wiretaps, so called based on the 1968 law that authorizes them, are subject to approval from the Justice Department and a federal judge. 18 U.S.C. § 2518(5) mandates minimization procedures for privileged communications, and appellate courts universally have interpreted this provision strictly. Minimization is crucial in many contexts; for instance, government prosecutors employ so-called taint teams of lawyers not involved with the case to screen for privileged information to prevent its falling into the hands of the prosecution.
In addition to civil liability, those involved could face criminal repercussions. The FBI agents involved could be charged under 18 U.S.C. § 2511, which prohibits the unauthorized interception and disclosure of communications in interstate commerce. The lawyer could be charged as a coconspirator under 18 U.S.C. § 371 for participating in the violation of the wiretap statute. Even if they had a warrant to surveil Patel and Wiles, that would in no way justify intentionally recording what are supposed to be privileged conversations between an attorney and their client.
Take a moment to digest the gravity of what happened. The Biden Justice Department subpoenaed records of allies of President Trump, Biden’s main political opponent, against whom there was no evidence of wrongdoing. Smith also subpoenaed records of nearly a dozen members of Congress. Then, the government wiretapped a call between a private citizen and her lawyer. J. Edgar Hoover, the infamous former FBI director who served for nearly half a century, regularly wiretapped political opponents. Under the Biden administration, the FBI degenerated into the abyss of the Hoover era. We must determine who else was the subject of these outrageous investigations, especially if there were other violations of attorney-client privilege.
Patel deserves massive credit for exposing this unconscionable conduct. The FBI worked hard to conceal it, labeling the files as “prohibited.” This means that the files were not readily accessible even to the new FBI leadership. Patel has stopped the “prohibited” subterfuge to prevent future abuse, and ten FBI agents no longer have jobs as a result of their involvement. That is a good start, but those involved in this monstrosity must face severe legal, political, and financial consequences. The anti-Trump lawfare nearly destroyed the Republic, and it must never happen again.
