In a recent Lawfare piece, Quinta Jurecic and Molly Reynolds argue that the Supreme Court’s 2020 decision in Trump v. Mazars, though limited by its terms to congressional subpoenas for the personal records of a sitting president, is having a profound effect on the broader legal landscape for the January 6 select committee and other congressional investigations. As further evidence of this phenomenon, I would point to the select committee’s recent filing in the John Eastman lawsuit, in which Eastman is seeking a court order prohibiting Chapman University, where he had been a law professor, from releasing to the committee allegedly privileged emails that Eastman sent or received through his university account. Specifically, Eastman claims that certain emails are privileged attorney-client communications and/or attorney work product arising out of his representation of Donald Trump, in his personal capacity as a candidate for office, and the Trump presidential campaign.
In a brief filed last week, the select committee advanced several arguments against Eastman’s claim of privilege, the most sensational of which was the committee’s contention that “evidence and information available to the Committee establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts, and that [Eastman’s] legal assistance was used in furtherance of those activities.” As this quote suggests, the committee’s argument is merely that there is sufficient evidence to warrant in camera review of the disputed material. Even if the court agrees with the committee on this point, it may ultimately conclude after review that the crime-fraud exception to the attorney-client privilege does not apply.
What I want to focus on today, however, is an argument that the committee did not make. At the outset of its brief, it refers to the standards applicable to establishing attorney-client privilege “to the extent attorney-client privilege applies in the context of a Congressional subpoena.” To explain this reference, the brief drops a footnote directing the reader to pages 37-39, which I suspect originally contained an argument that congressional committees are not bound to recognize common law privileges at all. This argument, however, was evidently removed, and now the committee’s discussion of the issue is confined to a footnote (no. 74), which states:
Congress has consistently taken the view that its investigative committees are not bound by judicial common law privileges such as the attorney-client privilege or the work product doctrine. See generally, Congressional Research Service, Congressional Oversight Manual 61-62 (March 21, 2021). This aspect of Congress’s investigative authority is rooted in the separation of powers inherent in the Constitution’s structure. Id. Congress and its committees make decisions regarding such common law privileges by balancing the important institutional, constitutional, and individual interests at stake on a case-by-case basis. Here, Congressional Defendants have determined, consistent with their prerogatives, not to submit an argument on this point. This is not, however, intended to indicate, in any way, that Congress or its investigative committees will decline to assert this institutional authority in other proceedings.
I am sure Senate Legal Counsel is relieved to hear the select committee is not purporting to waive the rights of “Congress or its investigative committees” in all future investigations, but why did the committee decide not to assert this longstanding congressional view here? In many ways this case would seem to provide a perfect illustration of why Congress believes it should not be bound by common law privileges. Continue reading “The Eastman Emails, the Attorney Client Privilege, and the Mazars Overhang”