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.
1. In its recent 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.