House Rules: Congress and the Attorney-Client Privilege
61 Pages Posted: 31 Oct 2022 Last revised: 6 Feb 2023
Date Written: 2022
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.
Keywords: Congress, Constitution, Article I, investigation, Supreme Court, executive branch, separation of powers, common law, attorney-client privilege, Trump, Office of Legal Counsel
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