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Posted October 2019, updated March 2024
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In congressional investigations, government agencies and private parties sometimes assert an attorney-client or attorney work-product privilege as a basis for withholding information. As a matter of discretion, congressional committees can choose to honor these common law privileges, but they do not need to do so. As the Congressional Research Service has written, “the acceptance of a claim of attorney-client or work product privilege rests in the sound discretion of a congressional committee regardless of whether a court would uphold the claim in the context of litigation.” The only privileges that Congress must recognize are constitutional ones, such as the Fifth Amendment right not to answer incriminating questions (Note 1).
Sometimes parties that assert an attorney-client or work-product privilege will refuse to turn the documents over voluntarily. One reason can be their concern that voluntary production could be interpreted as a waiver of the privileges in other contexts. A subpoena is usually sufficient to overcome concerns about a waiver. If the party holding the documents is the lawyer, a subpoena combined with the threat of enforcement should suffice. The DC Bar has issued an opinion stating that while a “lawyer has a professional responsibility to seek to quash or limit the subpoena on all available, legitimate grounds to protect confidential documents and client secrets,” the lawyer may provide the material if “the Congressional subcommittee overrules these objections, orders production of the documents and threatens to hold the lawyer in contempt absent compliance with the subpoena.”
One approach that some committees have successfully used when faced with an assertion of attorney-client or work-product privilege is to arrange for an in camera inspection of the documents to determine which, if any, of the documents at issue the committee will insist be produced. From the committee’s perspective, this step avoids the need for the committee to initiate contempt or other enforcement procedures for documents that are not essential to the investigation; from the document holder’s perspective, it can protect many sensitive documents from production. In fact, this accommodation process can obviate the need for any enforcement proceeding if the document holder decides to turn over the materials identified by the committee rather than face potential contempt.
Additional considerations can arise when a federal agency or the White House is involved because the President could invoke executive privilege to protect the documents from production. If the President does so, the attorney-client privilege issue will be subsumed into a dispute over the validity of the President’s executive privilege claim.
There are many examples of instances when congressional committees have obtained attorney-client and work-product documents from both private parties and the executive branch, as the examples below illustrate.
In a civil action brought in 2022 by private attorney John Eastman against the House Select Committee to Investigate the January 6th Attack on the United States Capitol, a federal district judge ruled that the crime-fraud exception to the attorney-client privilege applied to certain documents the Committee sought. The crime-fraud exception applies in circumstances where a client consults the attorney for advice that will serve them “in the commission of a fraud or crime” and the communications “were sufficiently related to and made in furtherance of the crime.” This case concerned a subpoena from the Committee to Eastman’s former employer, Chapman University, for documents stored on the institution’s servers related to the 2020 election and the January 6th attack. Eastman sued the Committee to prevent Chapman from complying, asserting that the documents sought were protected by attorney-client and work product privilege as he claimed to be serving as a lawyer for President Trump in the aftermath of the 2020 election. In a March 2022 ruling, the court concluded that an attorney-client relationship did exist between Eastman and President Trump, but that one of the documents sought was subject to the crime-fraud exception. The court stated that former President Trump more likely than not “corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021” and conspired to “defraud the United States by interfering with the election certification process.” The court further stated that one of the documents covered by the subpoena, a memo recommending that Vice President Pence reject electors during the counting of electoral votes in the January 6th joint session, furthered the criminal conduct at issue. In subsequent rulings in June 2022 and October 2022, the court found additional documents to be subject to the crime-fraud exception.
Footnote
1. In its decision in Trump v. Mazars USA, 591 U.S. __ (2020), the Supreme Court stated that recipients of legislative subpoenas “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.“ This statement is accurate with regard to constitutional privileges, but not with regard to common law privileges. The source that the Court cites for the attorney-client privilege is a Congressional Research Service report, Congressional Investigations: Subpoenas and Contempt Power, which does not actually support this proposition. The portion of the report cited by the Court involves President Clinton eventually producing the subpoenaed materials to the congressional committee, and the author of that report noted the proposition that “attorney-client privilege ’cannot be claimed as a matter of right before a legislative committee’” in another publication discussing this example.
