Volume 35

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

by Rocky Khoshbin

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 presidents had “managed for over two centuries to resolve such disputes among themselves without the benefit of guidance from us.” Still, however reluctantly, 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 concluding 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 . . .”

In an opinion full of firsts, this is not the one that has grabbed the most headlines; 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 “reasons that escape me” and that “this is assuredly not the case with regard to common law privileges.” Andy Wright, a former Associate White House Counsel, wrote that “the Supreme Court’s suggestion that there has been a settled understanding that such privileges are binding on Congress ignores stacks of contrary evidence.” 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.”

As this Note will show, these claims are undoubtedly true: the history of the attorney-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 disregard 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-client privilege. Part II lays out Congress’s arguments to have discretion to disregard 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 deprivation of liberty without due process under the Fifth Amendment.

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