(Editor’s note: This article is the second in a series on the Supreme Court’s Term.)
Trump v. Mazars represents the U.S. Supreme Court’s most significant ruling on congressional investigations in decades. The case addresses President Donald Trump’s efforts to block congressional subpoenas served on accounting and banking entities in possession of records prior to his assuming office. At the top line, the Court held that congressional subpoenas for the president’s information may be enforceable. However, the Supreme Court also held that the lower courts did not take adequate account of the significant separation-of-powers concerns stemming from subpoenas from the House of Representatives seeking Trump’s financial records. The Court established a framework for evaluating the enforceability of congressional subpoenas that could burden a presidential administration – a framework that envisions an active judicial role. There has been lots of good initial analysis of the Mazars ruling, its 2020 political salience, and its longer-term effects on legislative oversight of the executive branch.
But one passing item also merits attention. A small, inaccurate assertion by the Court could profoundly strengthen attorney-client privilege claims before Congress.
Specifically, in Mazars, the Supreme Court asserts that “recipients [of congressional subpoenas] have long been understood to retain common law and constitutional privileges.”
While true for constitutional privileges, the viability of common law privileges in Congress has been so much in doubt that generations of lawyers have advised clients that attorney-client communications and attorney work product may be discoverable by Congress.
The Court’s startling inclusion of “common law” privileges as those effective against congressional subpoenas will have great significance to congressional oversight committees, witnesses, and practitioners. Those words functionally resolve one of the most controversial aspects of congressional investigations.
A couple of astute congressional investigations watchers noted the significance of this language (see Mike Stern here, and Rob Kelner and Perrin Cooke here). The following builds on their observations and unpacks some of the questions this unexpected — and unsupported — language raises.
So, has it “long been understood” that congressional subpoena recipients “retain common law and constitutional privileges?”
The short answer is no. The Supreme Court’s suggestion that there has been a settled understanding that such privileges are binding on Congress ignores stacks of contrary evidence.
Constitutional and Common Law Privileges, Compared
There is no dispute that witnesses retain constitutional privileges in congressional investigations. That flows from the basic hierarchy of laws in our system. Constitutional rights outweigh statutes, regulations, or congressional procedure rules. For example, a witness may assert a Fifth Amendment privilege against self-incrimination to remain silent in the face of a congressional subpoena absent a grant of immunity. As I set out in Congressional Due Process, however, there aren’t many other constitutional rights or privileges that apply to congressional investigations. And where they do apply, Congress has at times undermined them by means of narrow application, waiver of assertion rights, or bullying.
As for institutional privileges, in United States v. Nixon, the Supreme Court held that the president possesses a constitutionally derived executive privilege over presidential communications sought in criminal cases. In ruling against President Richard Nixon, the Court nevertheless recognized that presidential communications privilege found its source in the structure of the Constitution:
The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. (Emphasis added)
That logic that presidential communications should be protected extends to congressional investigations. However, that privilege is qualified and can be overcome by a sufficient showing of investigative need. Indeed, the principal holding in Nixon was an order to produce the audio tapes documenting Nixon’s Oval Office conversations about the Watergate break-in and cover-up because of the acute criminal proceeding’s need.
Thus, a presumptive privilege might be able to be overcome by acute legitimate interests of an investigative body (such as the Watergate special prosecutor and grand jury). But, as a constitutional protection, the presidential communications component of executive privilege may not be simply ignored by Congress or removed by statute.
Common law privileges, on the other hand, are judicial creations without the imprimatur of a constitutional guarantee. There is a fulsome discussion of the common law process for federal courts’ recognition of common law privileges in In re Sealed Case. There, the D.C. Circuit (certiorari denied), rejected the Clinton administration’s argument that there was a “protective function privilege” that precluded U.S. Secret Service agents from testifying in grand jury proceedings about the president’s conduct. The administration argued that presidents would be more likely to engage in unacceptable security risks if they believed their protective detail could become witnesses against them in politically hostile investigations. The appellate court focused largely on Rule 501 of the Federal Rule of Evidence, which incorporates common law privileges and allows for the continued development of common law principles by the federal judiciary. The court acknowledged there was a risk, but declined to recognize a legal privilege in the absence of a statute.
Common law privileges include attorney-client, doctor-patient, priest-penitent, and spousal privileges. In each case, the privilege could be asserted to shield information from judicial proceedings in recognition of the policy interest in promoting free flow of communication in these critically important relationships. It has been typically understood that a common law privilege can be abolished or abrogated by legislative statute.
Common Law Privileges and Congressional Prerogatives
Congress has long held the view that, as judicial creations, common law privileges are simply not binding on legislative entities. As I noted in Congressional Due Process:
With the narrow exception of executive privilege claims based on presidential communications, Congress treats such privileges as advisory rather than binding. “[A]s with other claims of ‘common law’ privileges such as the attorney-client privilege and work product immunity, congressional practice has been to treat their acceptance as discretionary with the committee of jurisdiction.” Two House committees provide that “common-law privileges” raised by witnesses “are applicable only at the discretion of the Chairman, subject to appeal to the Committee.” Congress’s refusal to recognize privileges prompted a formal response from the American Bar Association. (Footnotes omitted).
Congress’s recognition of a presidential communications privilege is a direct result of the Supreme Court’s decision in Nixon over the Watergate special prosecutor’s subpoena seeking the recordings of Nixon’s conversations in the Oval Office. But, due to its constitutional source, Congress can neither abolish nor ignore it.
In fact, Congress has long sought to distinguish between presidential communications and deliberative process components of executive privilege doctrine for precisely this reason. That alleged distinction was at the centerpiece of Obama-era litigation over Congress’s subpoenas related to problematic gun trafficking investigations described collectively as Operation Fast and Furious (a matter on which I worked as White House attorney and about which I have written here, here, here, and here). Congress sought to characterize deliberative process privilege as a common law, rather than constitutionally sourced, privilege. Congress took that litigation position in order to advance the argument that a common law privilege was not binding on an investigating congressional committee. The federal district court rejected that view and held that the executive privilege to shield deliberative processes, like presidential communications, had a constitutional source. As I noted after an August 2014 ruling in House Oversight Committee v. Holder (after Loretta Lynch succeeded Eric Holder as Attorney General it was styled Lynch):
While obtaining some practical and legal victories, Congress lost its most prized legal argument. In Holder, Congress advanced a long-held institutional view that the deliberative process privilege was categorically unavailable to the Executive Branch as a defense against a congressional subpoena. The House brief included a section titled, “Deliberative Process Privilege…Does Not Apply to Congressional Subpoenas.” Congress argued that deliberative process privilege is derived from the common law and, unlike presidential communications privilege, does not enjoy constitutional status. Thus, deliberative process privilege is akin to attorney-client privilege, which Congress may choose to honor or disregard on a case-by-case basis.
But even there, the district court opinion seemed to accept the premise of the common law/Constitution distinction advanced by Congress: that a common law privilege would not be binding on Congress.
In the Mazars opinion, the Supreme Court relies on a 2003 Congressional Research Service article by Louis Fisher for its assertion that common law privileges are retained by parties in congressional investigations. The Court first cites the article while discussing the tradition of accommodation and compromise as the preferred method of resolving oversight disputes between Congress and the White House. There, the portion discussed relates to an episode in the investigation into the Whitewater land deal in Arkansas in which a Senate committee subpoenaed the notes of a White House attorney taken during a meeting with President Bill Clinton’s private attorneys. Clinton resisted the subpoena on attorney-client privilege grounds and, after protracted negotiations, turned over the notes with an explicit acknowledgment from the committee that he had not waived privilege.
Later in the opinion, the Court cites Fisher’s article as justification for its declaration that traditional litigation privileges are retained in congressional investigations. But that Whitewater investigation episode does not support the Court’s assertion. Fisher’s account of the Clinton episode does not carry the water the Supreme Court wants it to tote, as Mike Stern accurately observes:
An agreement to not…claim waiver of a privilege is not at all the same thing as agreeing that the privilege may be validly asserted, however. Indeed, in another place where Fisher describes this episode more fully, he notes that Chairman Leach explicitly made the point that the House’s agreement not to assert waiver was in the context of rejecting the existence of the privilege in the first place. See Louis Fisher, The Politics of Executive Privilege 106 (2004) (quoting Leach as noting that “one cannot waive a privilege that never came into being in the first place.”).
In fact, Fisher recites a different episode in that article in which the Department of Justice, with the Attorney General under threat of contempt of Congress, turned over some 400 documents it had asserted were “‘protected’ under the claims of attorney-client and attorney work product privileges.”
There is additional evidence that Congress has had no such understanding of retained common law privileges. Congress’s 2020 Congressional Oversight Manual asserts “it is the congressional committee alone that determines whether to accept a claim of attorney-client privilege.” (That is a quotation found in CRS reports dating back to at least 2014). In 2009, Rep. Edolphus Towns (D-N.Y.), then-chair of the House Oversight and Government Reform Committee, asserted: “Congress has the right to refuse…an assertion of the attorney-client privilege.” (See Congressional Due Process FN 220). In a stark example in 1977, a House subcommittee chair reviewed incidents through the U.S. founding and back to Congress’s antecedents in the House of Commons, and declared the precedents “fully sustain rejecting a claim of attorney-client privilege if it impedes in any manner whatsoever the necessary inquiries of the Congress in determining whether a law of the United States may have been violated or whether that law accords sufficient protection to the American people.” (See Congressional Due Process FN 225)
In sum, the Supreme Court’s assertion in Mazars that it has “long been understood” that parties retain common law privileges in congressional investigations is not supported by Congress’s historical practice, litigation precedent, legal advice provided clients by the private bar, or bar association concerns about Congress’s dismissiveness of these privileges.
So, what is the effect of the Supreme Court’s statement, especially if it was dicta? I think it will be quite significant.
First, there is a bit of parsing to be done on the scope of the Court’s language. Even if privileges are retained by the parties, one could read the Supreme Court language to allow for the congressional committee chair, rather than a reviewing court, to make privilege rulings (as has been the practice). However, I don’t think that is the best reading of the phrase. I think it suggests that a court could enforce the common law privilege, notwithstanding a congressional determination to the contrary.
Second, legal analysts will accurately note that this language is classic dicta, defined as:
A statement of opinion or belief considered authoritative because of the dignity of the person making it. The term is generally used to describe a court’s discussion of points or questions not raised by the record or its suggestion of rules not applicable in the case at bar. Judicial dictum is an opinion by a court on a question that is not essential to its decision even though it may be directly involved.
In other words, because the Court’s asserted understanding that congressional subpoena recipients “retain common law…privileges” is not necessary to its rulings in Mazars, that observation is not binding on lower federal courts or Congress as an intervening party to this case. As the phrase goes, it is ‘mere dicta.’
Because of the nature of congressional investigations, that Supreme Court dicta will allow executive branch officials and private parties significantly enhanced ability to resist subpoenas on traditional common law privilege grounds. Mazars sends a signal that at least seven members of the Court, across a broad ideological spectrum, subscribe to that view. Thus, parties resisting production of privileged materials to Congress will be able to predict favorable treatment by federal courts should Congress seek judicial enforcement of subpoenas or contempt citations. In addition, lawyers will be able to cite that Supreme Court language back to Congress, which will dilute the public shaming leverage Congress often uses to maximize its investigative yield.
I anticipate those of us in private practice that assist parties in congressional investigations will make great use of that language whenever privilege issues arise.
IMAGE: An audio feed of Supreme Court oral arguments in Trump v. Mazars and Trump v. Deutsche Bank AG, dealing with the subpoenas from the US Congress to obtain US President Donald Trumps financial records, is heard via a teleconference due to COVID-19, known as coronavirus, as seen on a laptop in Washington, DC, May 12, 2020. (Photo by SAUL LOEB/AFP via Getty Images)