Privileged Communications – the Death of Confidentiality and Trust
There was a time, perhaps a generation or two ago, when there was a universal understanding of what constitutes privileged communications. The concept, perhaps as old as the beginnings of verbal human communication itself, began as an understanding between two individuals that the content of their private conversation was to be kept confidential, and both parties were bound not to disclose its details to anyone else. In the event the confidentiality was breached, the cost of such a breach was inevitably the cessation of trust between the two individuals.
This concept of privileged communications became a part of Christianity in its very beginning, when Jesus implored his followers to “confess your sins, one to another” (James 5:16). This admonition to confess one’s sins to another led to the Catholic Sacrament of Penance, and for centuries the confidentiality of the confessional, otherwise known as the “Seal of the Confessional,” was deemed to be absolute. Essentially, nothing revealed in a confession was subject to legal subpoena, period…that is, until it wasn’t…as the Louisiana Supreme Court ruled in Louisiana v Fr. Jeff Bayhi (2014), when it stated that in certain cases a priest can be held in contempt if he refuses to disclose the contents of a confession under subpoena. The same confidentiality between doctor and patient has also become an open question, despite HIPAA laws which dictate quite the contrary.
The concept of privileged communications between attorneys and their clients, first developed in English Common Law, goes back to the time of Shakespeare when in 1577, in the case of Berd v Lovelace, it was ruled that solicitor Thomas Hawtry was not compelled by the court to disclose confidential information gained from his client. For the next four hundred forty-one years, the practice of attorney-client privilege was also deemed to be absolute…that is, until it wasn’t…when yesterday the FBI raided the hotel, home and office of Donald Trump’s longtime personal attorney Michael Cohen.
Cohen, who never has been part of Donald Trump’s administration and was not a part of Donald Trump’s presidential campaign, had been fully cooperative with Robert Mueller’s investigation, as had the president’s legal team at the White House. Having turned over millions of pages of documents to the Mueller team, such cooperation was thus “rewarded” with Mueller referring evidence he stumbled across, while investigating alleged Russian collusion with the Trump campaign, to the U.S Attorney in Manhattan. This prompted a “no-knock” raid on Cohen’s DC hotel, and his New York home and office where all of his records were surreptitiously seized without warning, much in the same manner that Paul Manafort’s home and office were raided without warning in July of last year. While the specific substance of what Mueller stumbled upon is not known, as of this writing, it also is evident of the fact that Mueller will stop at nothing to bring down a duly-elected President of the United States, based solely on a “fishing expedition” borne of a fictionalized dossier paid for by Hillary Clinton’s campaign. Meanwhile, some 1.2 million subpoenaed and unredacted documents are still being slow-walked by the Justice Department to Congress, more than a year after they were first, and have twice been since, subpoenaed.
So, what are we to make of this?
First, cooperating fully with Robert Mueller, in the end, means nothing and any notion that doing so is in the best interest of the president is purely bogus, despite all of the “experts” in the media who insist otherwise.
Second, the idea that the president will now sit down with Mueller, given Mueller’s treacherous actions, has gone the way of the dodo bird. Simply stated, it won’t happen…ever.
Third, the application of justice in the United States is no longer an exercise in objectivity…it has become most subjective, solely based on whether someone is a Republican or a Democrat. Just compare Trump’s treatment by the FBI and Justice Department, given the baseless allegations against him, to Hillary Clinton’s treatment by the same people, whose crimes are not imaginary, but very real. The double standard based on party affiliation becomes self-evident.
Fourth, and possibly most disturbing, the privileged communications that the bounds of honor once demanded, be it in the doctor’s office, the courts and in the church, have gone by the wayside- just as the profiled information of Facebook subscribers have been compromised- and all for nefarious reasons…
…and with the death of confidentiality and interpersonal trust that once existed in the lives of everyday people, we all are left utterly alone in the existence of our being here on this planet.
In a word, sick.
-Drew Nickell, 10 April 2018
© 2018 by Drew Nickell, all rights reserved.
author of “Bending Your Ear- a Collection of Essays on the Issues of Our Times”
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