Congress v. the attorney-client privilege: a 'full and frank' discussion.

AuthorBeard, Glenn A.
  1. INTRODUCTION II. CONGRESS'S POWER TO INVESTIGATE III. THE ATTORNEY-CLIENT PRIVILEGE IV. WHY CONGRESS HAS DISCRETION TO OVERRULE THE PRIVILEGE

    1. Legislative History and Practice

    2. Judicial Precedents

    3. Constitutional Law

    4. The Attorney-Client Privilege in Other Non-Judicial Fora

    5. Ethical Rules

    6. Erie Jurisdictional Law V. CONCLUSION AND RECOMMENDATIONS

  2. INTRODUCTION

    In late 1995, the Senate Whitewater Committee subpoenaed William Kennedy III, a member of the White House Counsel staff, to produce the notes he had taken at a November 1993 meeting in the offices of President Clinton's personal law firm, William & Connolly.(1) Also in attendance at that meeting were the President's personal counsel, David Kendall, and White House Chief Counsel Bernard Nussbaum.(2) Kendall resisted the subpoena, arguing that the meeting pertained to confidential legal advice for President Clinton, and that his notes were therefore protected by the attorney-client privilege.(3) Unswayed, the committee began enforcement proceedings under the Senate civil enforcement statute.

    Before this mechanism became necessary, however, the notes were turned over under an agreement that the disclosure would effect no waiver of the attorney-client privilege with respect to other matters.5 Thus Congress and the White House avoided a significant confrontation over the applicability of the privilege to the information sought by the committee. The issue faced by the Administration was not only that the privilege as developed by the courts might not have applied to the meeting, but also that the committee could have decided to overrule a claim of attorney-client privilege that a court would have upheld.

    Most clients, and probably many lawyers, assume that the attorney-client privilege protects their confidential communications against disclosure in any legal proceeding. Throughout the history of legislative investigations, however, sporadic debates have erupted over whether the privilege applies to testimony given to a congressional committee.(6) This Note argues that congressional witnesses are not legally entitled to the protection of the attorney-client privilege, and that investigating committees therefore have discretionary authority to respect or overrule such claims as they see fit. Part H briefly discusses Congress's investigatory and contempt powers. Part M outlines the rationale for and contours of the attorney-client privilege. Part IV examines and rejects the arguments advanced in support of a witness's right to invoke the privilege before Congress. Part V argues that Congress should sometimes exercise its discretion to overrule claims of attorney-client privilege.

  3. CONGRESS'S POWER TO INVESTIGATE

    Congress has an implied constitutional power to conduct investigations. This power is a corollary to Congress's expressly delegated legislative function.(7) The power to investigate is broad and must only be "related to, and in furtherance of, a legitimate task of the Congress."(8) However, the power may not be exercised in derogation of various constitutional protections, including those against compulsory self-incrimination and unreasonable searches and seizures.(9)

    Congress can enforce its subpoenas by instituting contempt proceedings against a witness in one of two ways. First, either House of Congress may choose to arrest, try, and punish a witness pursuant to its implied contempt power.(10) This practice has fallen out of favor, however, since the creation of Congress's second enforcement mechanism, the contempt statute,(11) originally enacted in 1857.(12) The current version provides as follows:

    Every person who having been summoned as a witness by the authority of

    either House of Congress to give testimony or to produce papers upon any

    matter under inquiry before either House, or [any committee thereof],

    willfully makes default, or who, having appeared, refuses to answer

    any question pertinent to the question under inquiry, shall be

    deemed guilty of a misdemeanor, punishable by a fine of not more

    than $1,000 nor less than $100 and imprisonment in a common jail

    for not less than one month nor more than twelve months.(13)

    Pursuant to this statute, a witness is subject to prosecution for contempt when the witness refuses to comply with the committee chairman's order to answer a question after the chairman has ruled against the witness's claim of privilege.(14) The committee then reports the witness's refusal to the full House, which in turn certifies the facts to the United States Attorney General for institution of grand jury proceedings.(15)

  4. THE ATTORNEY-CLIENT PRIVILEGE

    The attorney-client privilege, the oldest of the common-law protections for confidential communications, originated in Elizabethan times as a manifestation of the English gentleman's code of honor.(16) As the testimony of witnesses became increasingly important in judicial proceedings, the privilege survived under the theory that a client is more likely to confide in a legal adviser if the attorney cannot be compelled by law to divulge the client's secrets.(17) The courts of the United States have enthusiastically adopted the attorney-client privilege, recognizing that its purpose is "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."(18)

    According to one widely accepted formulation, the general principle of the attorney-client privilege is as follows:

    (1) Where legal advice of any kind is sought (2) from a

    professional legal adviser in his capacity as such, (3) the

    communications relating to that purpose, (4) made in confidence

    (5) by the client, (6) are at his instance permanently

    protected (7) from disclosure by himself or by the legal adviser,

    (8) except the protection be waived.(19)

    It is generally recognized that the attorney-client privilege does not apply in five situations: (1) communications in pursuit of a future criminal or fraudulent act; (2) disputes among claimants through the same deceased client: (3) disputes regarding a breach of duty by attorney or client; (4) communications regarding a document attested by an attorney; and (5) communications between attorneys and joint clients.(20)

    Pursuant to Federal Rule of Evidence 501, federal courts apply state privilege law in civil cases where state law governs an element of a claim or defense, and a federal common law of privileges, developed "in the light of reason and experience,"(21) in all other proceedings. Rule 101 makes clear that the Federal Rules of Evidence apply only in federal courts and before federal bankruptcy and magistrate judges.(22)

  5. WHY CONGRESS HAS DISCRETION TO OVERRULE THE PRIVILEGE

    This section articulates and assesses the arguments advanced by commentators on both sides of the debate: those who claim that witnesses in congressional investigations can claim the attorney-client privilege as a matter of right, and those who maintain that Congress has the authority to overrule such claims if it so chooses. The conclusion is that although the arguments in favor of discretion are not entirely as irrefutable as has been represented by some advocates, on balance they win the day' over their opponents, whose claims of a legal basis for the privilege before Congress are based largely on strained logic and inapplicable law.

    The sources of law from which both sides of the debate have drawn their arguments can be classified for the sake of convenience into six categories: legislative history and practice; judicial precedents pertaining to testimonial privileges before Congress; constitutional law; the extension of the privilege to other non-judicial fora; ethical rules; and jurisdictional law under Erie.

    1. Legislative History and Practice

      The congressional contempt statute(23) provides for the punishment of recalcitrant witnesses but contains no reference to whether testimonial privileges apply in legislative investigations. The rules of the House state that "[w]itnesses at investigative hearings may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights[,]"(24) but do not mention the attorney-client privilege. The Senate's rules are likewise silent with respect to testimonial privileges.(25) In the absence of a statute or congressional rule governing the privilege before Congress, legislative authority for either side of the debate can be found only by examining the legislature's treatment of the attorney-client privilege over the history of congressional investigations.

      In England, the birthplace of the attorney-client privilege, a witness before a Parliamentary committee is "bound to answer all questions which the committee sees fit to put [to] him, and cannot excuse himself, for example. . . . because the matter was a privileged communication to him, as where a solicitor is called upon to disclose the secrets of his client. . . ."(26)

      Various advocates of the discretionary approach have relied on this authoritative statement of parliamentary procedure,(27) but its persuasive value is questionable in light of an 1880 Supreme Court ruling invalidating the House's exercise of its implied contempt power. In Kilbourn v. Thompson,(28) the Court rejected the argument that the House had powers commensurate with those of the British Parliament, stating that "the right of the House of Representatives to punish the citizen for a contempt of its authority or a breach of its privileges can derive no support from the precedents and practices of the two Houses of the English Parliament. . . ."(29) The applicability of the attorney-client privilege is directly related to Congress's contempt powers, and parliamentary practice therefore lends little support to the discretionary position in the wake of Kilbourn.

      The 1857 congressional debates preceding the enactment of the original contempt statute(30) contain...

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