Mazars and Common Law Privileges Before Congress

So the Supreme Court’s decision in Trump v. Mazars USA, LLP, 591 U.S. __ (2020), yesterday will be a full employment act for congressional lawyers for the foreseeable future, but today I just wish to weigh in on one relatively minor point. For reasons that escape me, the Court chose to offer the following piece of dicta: “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 and governmental communications protected by executive privilege.” Mazars, slip op. at 12. The Court evidently thought this was a noncontroversial observation, but this is assuredly not the case with regard to common law privileges. As readers of this blog are aware, Congress has long asserted that it is not obligated to respect common law privileges such as the attorney-client privilege.

The sole authority cited by the Court for the proposition that witnesses “retain” their common law privileges is a 2003 Congressional Research Service report written by Louis Fisher. The cited section of the report describes the 1995 dispute between the Clinton administration and congressional committees investigating Whitewater regarding the notes of a White House lawyer regarding a meeting conducted to discuss legal strategy with Clinton’s personal lawyers. The Clinton administration asserted that these notes were protected by attorney-client privilege and they demanded that the congressional committees agree that the production of these notes would not constitute a waiver of the privilege. Fisher notes that as part of an agreement to provide the notes to the Senate Whitewater Committee, “House Banking and Financial Services Committee Chairman Jim Leach announced that the House wold not try to later assert that President Clinton had waived his attorney-client privilege.”

An agreement to not to 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.”). More importantly, Leach explained that Congress was not obligated to respect the attorney-client privilege even if it applied because “[i]t is well-established by congressional precedent and practice that acceptance of a claim of attorney-client privilege rests in the sole and sound discretion of Congress, and cannot be asserted as a matter of right.” Id.

While the question of whether Congress must respect common law privileges in general, and the attorney-client privilege in particular, will no doubt remain a hotly debated topic, the Supreme Court’s poorly researched dicta on this point should not be given any weight.

Update: Rob Kelner also discussed this issue at Covington’s Political Law Blog (hat tip: @derekmuller).