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.
To see why, let’s take a simplified fact pattern in which Trump retains Eastman to serve as his lawyer, but solely for the purpose of filing or intervening in various lawsuits brought to contest the results of the 2020 election. Suppose further that the communications in question would ordinarily be protected by attorney-client privilege, but the select committee has strong reason to believe Eastman knew these lawsuits were factually and legally without merit and stood no chance of succeeding in court. The committee further surmises that Eastman would have informed Trump of this fact, but that Trump nonetheless directed Eastman to proceed in order to (1) provide Trump with the public appearance of a legitimate legal grievance about the outcome of the election and/or (2) provide legal cover for other public officials (such as state election officials, state legislatures, members of Congress, and the vice president) to take official action to achieve Trump’s objectives.
Would this fact pattern be sufficient to establish an exception to the attorney-client privilege? Under the hypothesized facts, Eastman may have violated court rules on making frivolous arguments or breached his professional ethical obligations, but it seems to me unlikely he has committed a crime or fraud. Yet from the committee’s perspective, the facts establish an abuse of the attorney-client relationship that is as bad as, if not worse than, the commission of a crime or fraud. Moreover, the abuse is directly relevant to the committee’s investigation because it needs to understand the full scope of Trump’s effort to discredit and reverse the results of the 2020 election.
Some jurisdictions (in my understanding) have adopted more capacious views of the crime/fraud exception, extending it to lesser wrongs such as civil torts. It is doubtful, however, that there is much, if any, judicial precedent that is truly analogous to the situation faced by the select committee. For this reason it makes more sense for the committee (and ultimately the House) to make the decision as to whether to recognize the privilege.
To be sure, there may be instances where a congressional attempt to pierce the attorney-client privilege raises questions of a constitutional magnitude. For example, imagine a committee which seeks to interrogate the attorney for an unpopular criminal defendant who is on trial (or recently acquitted). But in the absence of such constitutional issues, it is not apparent why Congress should be required to follow judicial rules regarding the scope of common law privileges.
So why did the select committee decide not to press this argument? I suspect it had a lot to do with Chief Justice Roberts’ casual dictum in Mazars 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 and governmental communications protected by executive privilege.” With respect to common law privileges, this statement is simply wrong, or at least incomplete, but my guess is that the select committee does not want to spend the next couple years trying to explain that to the federal courts.