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Claiming Executive Privilege in Legal Discovery: A Case Study with Jared Kushner and the Lincoln Project
Claiming Executive Privilege in Legal Discovery: A Case Study with Jared Kushner and the Lincoln Project
The application of executive privilege in legal contexts, particularly during discovery, can pose significant challenges. This article explores a specific example involving Jared Kushner's defamation lawsuit against the Lincoln Project, highlighting the complexities and legal considerations. Understanding these dynamics is crucial for both plaintiffs and defendants in litigation.
Introduction to Legal Discovery
Legal discovery is the process by which parties in litigation exchange information and evidence to prepare for trial. Discovery can include requests for documents, interrogatories, depositions, and other forms of evidence gathering. In the context of a defamation lawsuit, such as the one between Jared Kushner and the Lincoln Project, the discovery process plays a critical role in substantiating and disproving claims.
Executive Privilege in Litigation
Executive privilege, or administrative privilege, grants certain branches of government the right to withhold certain information from disclosure. This privilege is invoked when disclosure can impair the executive branch's ability to perform its duties effectively. However, the invocation of executive privilege in legal proceedings is not without constraints.
Waiver of Privilege
When a party claims executive privilege to protect information relevant to a lawsuit, the other party has the right to challenge this claim. If the plaintiff seeks to rely on information protected by executive privilege while seeking to keep other information confidential, this could constitute a waiver of the privilege. As observed in the case of Jared Kushner suing the Lincoln Project for defamation:
"If a plaintiff makes a claim based upon information which would otherwise be privileged from disclosure, he either waives the privilege or the lawsuit may ultimately be dismissed."
Case Study: Jared Kushner vs. Lincoln Project
The case involving Jared Kushner and the Lincoln Project is a prime example of these legal principles in action. In note 7 of their legal response, the Lincoln Project cited the involvement of Kushner and Ivanka Trump, who are both employees of the executive branch. This raises the question of whether they can invoke executive privilege to protect their communications.
Invoking Executive Privilege
When an executive branch employee attempts to invoke executive privilege during a legal proceeding, the burden of proof rests on the party claiming privilege. They must demonstrate that disclosure would impair the government's functioning. In the case of the Lincoln Project, if either Kushner or Ivanka Trump tried to avoid a deposition by invoking executive privilege, they would need to:
Prove that the evidence demanded would require the disclosure of confidential information. Show that this disclosure could impair the government's functioning.The court, in reviewing the matter, may only consider confidential evidence in a closed session, not in open court. The judge could:
Declare that the privilege applies to everything. Declare that the privilege applies to only some things. Decline to recognize any privilege.Proving the Need for Privilege
The requirement to prove the need for privilege underscores the strategic importance of both the plaintiff and defendant. In Kushner's defamation lawsuit, he would need to prove that the Lincoln Project falsely attributed a statement to him. If he cannot establish this, the lawsuit is unlikely to succeed. On the other hand, the Lincoln Project must be prepared to defend its claims and potentially provide evidence even if it involves privileged information.
Conclusion
Claiming executive privilege in the context of legal discovery is a nuanced issue. The case of Jared Kushner suing the Lincoln Project demonstrates that the waiver of privilege and the burden of proof can significantly impact the outcome of a lawsuit. Legal professionals must navigate these complexities carefully to ensure the protection of privileged information and the just resolution of disputes.