Andrew Napolitano did his part to make sure Sean Hannity didn't suffer any real consequences for his failure to disclose his relationship to Michael Cohen.
April 17, 2018

Andrew Napolitano took care of chastising Sean Hannity so Fox News could stand by their man, Sean Hannity.

On today's Outnumbered Overtime, Napolitano shook his finger at Sean Hannity's failure to ever disclose his attorney-client relationship with Trump fixer Michael Cohen.

"I love [Hannity]. I worked with him for 20 years," Napolitano said. "He can't have it both ways. If he was a client, then his confidential communications to Mr. Cohen are privileged. If Mr. Cohen was never his lawyer, then nothing that he said Mr. Cohen is privileged."

Yes, indeed. And since they never talked about anything much other than maybe some real estate things (never mind that Donald Trump was in the business of, um...REAL ESTATE), what's the big deal, right?

Harris Faulkner then tried to probe a bit on the whole attorney-client privilege issue, asking whether something of value had to be exchanged to establish privilege.

"That's a myth," Napolitano retorted. "The attorney-client privilege requires formal relationship reduced to writing for a specific legal purpose."

Luckily for us here at Crooks and Liars, we have our own lawyer-contributor who explains these things so well that Fox News should actually read our site instead of relying on a guy who isn't a judge but calls himself a judge. If they did, they'd know that the way attorney-client privilege is established is complicated and not easily reduced to a simple formula.

Here is what A.H. Neff says about attorney-client privilege:

In other words, lawyers must know fully their clients' facts to give clients the best possible legal advice, and clients are more likely to share their facts with their lawyers when the clients know they can disclose their facts in confidence.

So for that privilege to exist with regard to Sean Hannity, some legal advice would have been sought from Michael Cohen for which Sean Hannity shared some facts.

It doesn't have to be in writing, Mr. Napolitano.

This whole segment -- in the "overtime" broadcast of their regular show -- was nothing more than a CYA exercise so Fox News could then release a statement standing by Hannity, which they did.

"While Fox News was unaware of Sean Hannity's informal relationship with Michael Cohen and was surprised by the announcement in court yesterday, we have reviewed the matter and spoken to Sean and he continues to have our full support," they wrote in a statement.

And so we have gone full circle. Either it was a formal relationship where attorney-client privilege attached, or it was an "informal relationship" where no advice was sought and no facts were shared. It is one or it is the other, but as Napolitano says, they can't have it both ways.

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