At the June 28 meeting of the House Committee on Oversight and Government Reform, a question arose about the role of House Counsel in providing legal advice to COGR and its members. Chairman Issa had requested and received a House Counsel opinion on whether Lois Lerner waived her Fifth Amendment privilege by making an exculpatory opening statement at a prior COGR hearing. Issa took the position that this opinion was attorney-client privileged. Although he shared the opinion with Ranking Member Cummings prior to the June 28 meeting, he had asked Cummings to limit distribution of the document to prevent public disclosure.
Specifically, Issa requested that Cummings not distribute the opinion to “all of your members,” presumably because he feared that such wide distribution would inevitably lead to its being leaked. Committee Democrats protested that every member of COGR had an equal right to the opinion because House Counsel is charged with representing the House as a whole. Issa countered that each member of COGR was free to obtain his or her own opinion from House Counsel. He maintained, however, that this opinion was given to the committee majority and had been shared with the minority only as a “courtesy.”
This debate reflects some confusion about the function of House Counsel. It may also reflect the fact that the role of congressional lawyers in general, and House Counsel in particular, is, as the law professors like to say, “under-theorized.” (Which, admittedly, is a bit like your State Farm agent saying you are “under-insured”). As I noted a few years ago:
House Rule II(8), which establishes OHC [the Office of House Counsel], provides that the office exists,
for the purpose of providing legal assistance and representation to the House. Legal assistance and representation shall be provided without regard to political affiliation. The Office of General Counsel shall function pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group, which shall include the majority and minority leaderships.
This language, which constitutes essentially all of the legal authority defining the scope of the OHC’s functions and obligations, provides only limited guidance as to the OHC’s ethical responsibilities. It could be read to suggest that OHC’s responsibilities run primarily, if not exclusively, to the House as an institution, rather than to individual members or offices. On the other hand, it requires that OHC provide assistance and representation without regard to political affiliation, a directive that seems unintelligible except in the context of providing advice or representation to particular members. Finally, it implies that questions about the OHC’s responsibilities, including issues relating to the House’s institutional legal interests and positions, are to be resolved by the Speaker of the House after consultation with the Bipartisan Legal Advisory Group (BLAG).
Michael L. Stern, Ethical Obligations of Congressional Lawyers, 63 NYU Ann. Survey of Am. L. 191, 199 (2007).
With this background in mind, consider what happens when the chairman of COGR approaches House Counsel and asks for a written opinion regarding whether Lerner had waived her Fifth Amendment right. This would be not an unusual request as House Counsel routinely “assists committees in issuing subpoenas and carrying out oversight and investigatory activities.” Id. at 198. Because of the political sensitivity of the matter in question, it is likely that House Counsel would have at least notified the Speaker that the request was made, and it is possible that it required the Speaker’s authorization before undertaking the representation. House Counsel would not ordinarily communicate with individual members of the committee, either majority or minority, about the representation. Unless otherwise directed, House Counsel would provide its written opinion to the chairman alone.
Does this course of proceeding reflect the fact that House Counsel has a privileged attorney-client relationship with the chairman, the committee majority or even the committee itself? Probably not. In the course of providing a wide variety of legal advice and services related to the official functions of the House, the House Counsel will often refer to, and in some sense regard, each member or office as a separate “client” for purposes of a particular representation. Id. Yet this designation is misleading to the extent it implies that the “client” enjoys a legally protected relationship that could be asserted against the House as a whole. Ultimately questions about confidentiality or other aspects of the House Counsel’s functions are determined by the Speaker, in consultation with BLAG, or by the House itself.
In this case House Counsel likely regards the “client” as either Issa, in his capacity as chairman of COGR, or the committee itself. I doubt that it would regard the committee majority as the client because this would arguably conflict with the directive that representation “be provided without regard to political affiliation.” But not much turns on who is identified as the nominal client. House Counsel would not treat the question of whether the opinion may be shared with other COGR members as a legal ethics question. Nor would it be normal or appropriate for House Counsel to provide separate opinions to individual members of COGR on a matter relating to the committee’s functions. Instead, House Counsel would provide an opinion to Chairman Issa, who must then determine, as a matter of House and committee rules, whether he is obligated to share the document with individual committee members. While House Counsel (or more likely, the House Parliamentarian) might advise Issa on this issue, the decision is one for the chairman to make. The Speaker, on the other hand, could always direct House Counsel to make its opinion available to other members or to the general public.
Two final observations. First, while there is an argument that the House Counsel opinion should be viewed as a committee record available to all members, see House Rule XI(2)(e)(2)(A), this does not mean that every member gets to have his or her own copy. Issa could have treated the opinion as executive session material and required members to review it at a central location. The fact that he chose to give Cummings a copy but asked him to limit further distribution, therefore, hardly seems worth making a federal case over.
Second, the more serious concern here, IMHO, is not the internal treatment of the House Counsel opinion, but whether the opinion should be released to the general public. True, there may be no legal obligation to do so. But just as it is inappropriate (again, IMHO) for the president to rely on secret OLC memos to justify actions that he takes, it would be so for COGR to move forward with contempt against Lerner in reliance on a memo which it declines to make public. Perhaps there are legitimate reasons to hold off on releasing the House Counsel opinion while negotiations with Lerner’s counsel are still ongoing, but it should be released as soon as possible if COGR intends to hold Lerner in contempt.