The Pierced Privilege: Challenges to How Congress Vitiates the Attorney-Client Privilege

• Author: Rocky Khoshbin
• Position: J.D., Georgetown University Law Center (expected May 2023); B.A., University of Illinois (2020)
• Pages: 847-869

The Pierced Privilege: Challenges to How Congress

Vitiates the Attorney-Client Privilege

ROCKY KHOSHBIN*

INTRODUCTION

In the summer of 2020, the Supreme Court found itself in uncharted waters.

Trump v. Mazars was a dispute over a congressional subpoena for President

Trump’s personal financial records. The Court recognized the case as “the first

of its kind to reach this Court.”

1

The Court’s opinion, delivered by Chief

Justice Roberts, chides the legislative and executive branches for failing

to work out a compromise. He reminded them that past congresses and presi-

dents had “managed for over two centuries to resolve such disputes among

themselves without the benefit of guidance from us.”

2

Still, however reluc-

tantly, the Supreme Court waded into the choppy waters separating the powers

of Articles I and II.

While grappling with the major constitutional concerns such as separation of

powers and executive privilege, the Supreme Court’s opinion bumped into the

largely unrelated issue of the attorney-client privilege. In a short paragraph con-

cluding the opinion’s discussion on limitations of congressional investigations,

the Court wrote that “recipients [of congressional subpoenas] have long been

understood to retain common law and constitutional privileges with respect to

certain materials, such as attorney-client communications . . .”

3

In an opinion full of firsts, this is not the one that has grabbed the most head-

lines; however, many have been puzzled by the Supreme Court’s matter-of-fact

decree on the issue. Michael Stern, who served as Senior Counsel to the U.S.

House of Representatives, wrote that the Court included the “dicta” for “rea-

sons that escape me” and that “this is assuredly not the case with regard to com-

mon law privileges.”

4

Michael Stern, Mazars and Common Law Privileges Before Congress, POINT OF ORDER (July 10, 2020),

https://www.pointoforder.com/2020/07/10/mazars-and-common-law-privileges-before-congress/ [https://perma.

cc/4JSJ-VTS7].

Andy Wright, a former Associate White House Counsel,

wrote that “the Supreme Court’s suggestion that there has been a settled under-

standing that such privileges are binding on Congress ignores stacks of

* J.D., Georgetown University Law Center (expected May 2023); B.A., University of Illi-nois (2020).

© 2022, Broderick (Rocky) Khoshbin.

1. Trump v. Mazars, 140 S. Ct. 2019, 2031 (2020).

2. Id.

3. Id. at 2032.

4.

847

contrary evidence.”

5

Andy Wright, Supreme Court’s Trump v. Mazars Ruling Gave Attorney-Client Privilege a Boost in

Congress, JUST SECURITY (Aug. 12, 2020), https://www.justsecurity.org/71970/supreme-courts-trump-v-

mazars-ruling-gave-attorney-client-privilege-a-boost-in-congress/ [https://perma.cc/PU96-UG5W].

In fact, experts in congressional investigations have noted

that “congressional investigators have long averred that they are not bound by

judge-made common law privileges, including the attorney-client privilege and

attorney work product doctrine.”

6

Perrin Cooke & Robert Kelner, The Supreme Court’s Mazars Decision Contains a Significant Suggestion

That Congress May Be Bound by the Attorney-Client Privilege in Congressional Investigations, INSIDE POL. L.

(July 9, 2020), https://www.insidepoliticallaw.com/2020/07/09/the-supreme-courts-mazars-decision-contains-

a-signicant-suggestion-that-congress-may-be-bound-by-the-attorney-client-privilege-in-congressional-

investigations/ [https://perma.cc/RQH6-FNSD].

As this Note will show, these claims are undoubtedly true: the history of the at-

torney-client privilege before Congress is far more complicated than the Supreme

Court is letting on. It is tempting to stop there and mark the whole thing up as a

mistake, but the fact that the Court went out of its way to include this assertion

that the attorney-client privilege is a recognized privilege before Congress hints

at something more. The decision has brought a long-deferred issue to the fore

and, potentially, serves as an invitation to challenge Congress’s power to disre-

gard the attorney-client privilege.

This Note accepts that invitation. It proposes new avenues to challenge

Congress’s power to disregard the attorney-client privilege. Part I outlines

Congress’s power of inquiry and how it currently interacts with the attorney-cli-

ent privilege. Part II lays out Congress’s arguments to have discretion to disre-

gard the attorney-client privilege. Part III presents two novel arguments asserting

that congressional investigations that disregard the attorney-client privilege are

unconstitutional: first, that they run afoul of the Fourth Amendment’s prohibition

against unreasonable searches and seizures, and second, they amount to a depri-

vation of liberty without due process under the Fifth Amendment.

I. CONGRESSIONAL INVESTIGATIONS

A. “THE GRAND INQUEST OF THE NATION”

In a British parliamentary debate in 1741, William Pitt the Elder decreed that

“we are called the Grand Inquest of the Nation, and as such it is our duty to

inquire into every step of public management, either abroad or at home, to see

that nothing has been done amiss.”

7

Harry Evans, The Senate, Accountability, and Government Control, THE PARLIAMENTARY STUDIES

CENTRE, (2008), https://www.aph.gov.au/About_Parliament/Senate/Research_and_Education/�/�/link.aspx?

_id=17EF4947DD5D4214BC6C1162200D893E&_z=z [https://perma.cc/QZ5A-L2AC].

Not a single member of Parliament dis-

agreed.

8

This sentiment was adopted by the United States Congress, which used

the power as early as 1792.

9

5.

6.

7.

8. Id.

9. James Hamilton, Robert F. Muse & Kevin R. Amer, Congressional Investigations: Politics and Process,

44 AM. CRIM. LAW REV. 1115, 1118 (2007).

848 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:847