HOUSE RULES: CONGRESS AND THE ATTORNEY-CLIENT PRIVILEGE.

• Author: Rapallo, David

ABSTRACT

In 2020, the Supreme Court rendered a landmark decision in Trump v. Mazars establishing four factors for determining the validity of congressional subpoenas for a sitting president's personal papers. In an unanticipated move, Chief Justice John Roberts added that recipients of congressional subpoenas have "long been understood" to retain not only constitutional privileges, but common law privileges developed by judges, including the attorney-client privilege. This was particularly surprising since Trump was not relying on the attorney-client privilege and the Court had never treated this common law privilege as overriding Congress's Article I power to set its own procedures for conducting investigations.

This article examines the merits of this claim from three possible sources of authority: separation of powers principles, congressional oversight precedents, and judicial rulings. It concludes that since the attorney-client privilege is rooted in common law, committees are not required to recognize it, but may do so if they choose. It also finds that although recipients of congressional subpoenas may assert applicable constitutional privileges to withhold certain subsets of attorney-client communications, these privileges may be limited. Finally, rather than assuming that the Chief Justice's line was erroneous dictum or a sweeping new pronouncement with no explanation, this article offers an alternative reading that gives him the benefit of the doubt and aligns with current practice: recipients of congressional subpoenas retain their right to assert the privilege in separate proceedings, and complying with compulsory demands from Congress does not constitute a general waiver in other fora.

TABLE OF CONTENTS I. CONGRESSIONAL SUBPOENA POWER AND THE COMMON LAW Attorney-Client Privilege A. Separation of Powers Principles B. Congressional Oversight Precedents 1. Congressional Precedents on Attorney-Client Privilege 2. Recent Oversight Committee Case Studies C. Judicial Precedents II. CONGRESSIONAL SUBPOENA POWER AND CONSTITUTIONAL PRIVILEGES A. Constitutional Privileges for Individuals B. Constitutional Privileges for Executive Branch Officials III. ALTERNATIVE READING OF THE CHIEF JUSTICE'S POSITION IN MAZARS CONCLUSION INTRODUCTION

In 2019, three House committees--the Committee on Oversight and Reform, the Permanent Select Committee on Intelligence, and the Committee on Financial Services--issued subpoenas to obtain documents from then-President Donald Trump's bankers and accountants in response to a wide range of troubling allegations. (1) Trump intervened to fight the subpoenas, and the Supreme Court, in its landmark decision, Trump v. Mazars, affirmed several core principles: each House of Congress has power under the Constitution to conduct investigations, committees may issue subpoenas to compel the production of documents and testimony, and no individual has an absolute right to defy congressional demands. (2)

However, because the case involved the President, the Court observed that it implicated the separation of powers. (3) The Court set forth a new, non-exhaustive list of four factors for courts to evaluate when reviewing congressional subpoenas for a sitting president's personal papers: (1) whether the legislative purposes warrant involving the President and his papers; (2) whether the subpoena is no broader than reasonably necessary to support these legislative objectives; (3) whether the evidence offered by Congress establishes that the subpoena furthers a valid legislative purpose; and (4) whether the burdens on the President "cross constitutional lines." (4) In an unanticipated move, Chief Justice Roberts, writing for the Court, also inserted the following aside regarding testimonial privileges for individuals who receive subpoenas from Congress:

And recipients have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege. (5) This impromptu declaration was doubly surprising because Trump was not relying on the attorney-client privilege and the Supreme Court had never treated common law privileges developed by federal judges as supplanting Congress's explicit authority under Article I of the Constitution to set its own rules to conduct investigations. The Chief Justice drew no distinction between constitutional privileges that Congress must recognize and common law privileges that Congress may recognize. He did not explain under what authority he believes Congress is required to recognize the common law attorney-client privilege, and he suggested that Congress may be required to recognize other unspecified common law privileges as well.

Part I of this article examines the merits of the claim that Congress is required to recognize the common law attorney-client privilege from three perspectives: separation of powers principles, congressional oversight precedents, and judicial rulings. It concludes that congressional committees are not required to recognize non-constitutional common law privileges, but they may do so if they choose. As one of the oldest privileges based in common law, the attorney-client privilege has been developed by courts to serve the widely shared policy goal of promoting trust and confidentiality in attorney-client relationships. But there is no precedent indicating that it has a constitutional basis. While committees respect the policy interests underlying the privilege--and use their discretion routinely to allow assertions of the privilege in their proceedings--they also safeguard their authority to overcome the privilege if necessary to fulfill their many responsibilities under the Constitution. Under Article I, the decision to recognize this common law privilege rests with committees themselves and, absent a committee's consent, federal courts historically have declined to intervene when constitutional privileges are not at stake.

Since Congress must recognize applicable constitutional privileges, Part II takes up constitutional privileges that individuals may assert to withhold information that could include a subset of attorney-client communications. For example, a witness may assert the Fifth Amendment right against self-incrimination, or a president may invoke executive privilege over presidential communications. Committees must give due weight to these privileges, and courts evaluate whether these privileges apply. For example, courts examine whether Fifth Amendment claims are properly invoked, and they determine whether government communications are sufficiently linked to presidential decision-making to fall under executive privilege. Courts also consider whether Congress has overcome these constitutional privileges, for example, by granting immunity to witnesses who invoke the Fifth Amendment or making a sufficient showing of need to overcome the presidential communications privilege. However, once courts decide these constitutional questions, their task is complete. Courts generally have avoided deciding whether information sought by Congress would be covered by common law privileges and instead have left those determinations where the Constitution leaves them: with Congress.

Part III takes a closer look at the Chief Justice's position in Mazars. If he meant to suggest a broad consensus among Congress and the Judiciary that witnesses may defy congressional subpoenas based on the common law attorney-client privilege, that claim is simply wrong. Congress has taken the opposite position for generations, and the Chief Justice did not cite any judicial precedent to support this interpretation. If he held this inaccurate view, the line should be disregarded as erroneous dictum, and the Court should promptly correct this mistake. Another possibility is that the Chief Justice meant to declare that committees are required--from this point on-to look to federal courts to decide how and when committees must recognize the privilege. However, he provided no explanation of the constitutional authority underpinning this assertion, and there is little evidence that he intended to make such a remarkable pronouncement, unprompted and unbriefed.

Acknowledging the perils of trying to divine the Chief Justice's intent, there is another interpretation of this line that would give him the benefit of the doubt. Instead of assuming he was negligent or imperious, his line could be read as acknowledging that recipients of congressional subpoenas retain the right to assert the privilege in other venues not directly related to congressional investigations and that complying with mandatory congressional demands does not constitute a general waiver in those other proceedings. As discussed in Part III, this interpretation gives meaning to the specific authorities the Chief Justice cited and the particular congressional investigation he referenced in the opinion, it harmonizes current law and practice by squarely addressing the (very real) waiver concerns of practitioners representing clients before Congress, and most importantly, it comports with separation of powers principles, congressional oversight precedents, and judicial rulings.

The resolution of these questions could have significant short--and long-term implications. To legislate effectively, committees examine a wide range of conduct by individuals--including attorneys--who work in corporate and private sector entities in health, finance, defense, and other fields. Congress is also charged with examining the conduct of government officials to expose fraud, waste, and abuse of taxpayer funds, inform the public, and develop legislation governing the activities of federal agencies. Curtailing committees' longstanding practice of examining the conduct of attorneys would significantly impair the ability of those committees to obtain relevant information needed for...