November 6, 2009
Previously published on November 2, 2009
Rep. Edolphus Towns (D-N.Y.), Chairman of the House Committee on Oversight and Government Reform,1 recently asserted, as other Congressional leaders before him have done, that “Congress has the right to refuse to recognize an assertion of the attorney-client privilege.”
Was the congressman correct in the assertion that attorney-client privilege is subject to congressional discretion? This is a question concerning which there is no definitive answer and a dearth of guiding case law. A good argument, however, can be made that the courts would not uphold the congressman’s claims.
Three arguments support the claim that Congress may disregard the attorney-client privilege.2 The first is that Congress’s constitutional authority to investigate overrides the non-constitutional attorney-client privilege. The second is that this privilege relates solely to the adversary system and thus is inapplicable to congressional investigations, which are non-adversarial.3 The third argument is that congressional precedent and practice demonstrate that Congress can ignore the privilege. Each of these arguments is flawed.
The argument that a constitutional power to investigate outweighs a non-constitutional privilege falters when it is recognized that federal grand juries also have a constitutional right to investigate.4 Yet, it is well-established that the attorney-client privilege is fully applicable before a grand jury.5 Moreover, both courts and Congress have recognized that the attorney-client privilege is not just a procedural right, but is also a substantive right.6 As such, it is a right that Congress should not have discretion to negate.
The grand jury example also is at odds with the notion that the privilege is applicable only in an adversary context. Grand juries are investigative, not adversarial, yet the privilege operates in full force in that context. Moreover, as the well known Upjohn case7 makes clear, the privilege is worth little if it is not applicable in all circumstances, adversarial or not:
[I]f the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.8
Finally, the congressional precedents are mixed. Many committees have recognized the validity of legitimate claims of attorney-client privilege.9
There are, therefore, substantial arguments that the attorney-client privilege should, as a matter of law, apply before Congress. Corporations and individuals faced with congressional demands for evidence should be aware of these arguments, and the fact that some committees will indeed recognize well-founded privilege claims.
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