The Attorney-Client Privilege in Congressional Investigations after Mazars

I have been meaning to blog about a new article by Dave Rapallo entitled House Rules: Congress and the Attorney-Client Privilege, 100 Wash. U. L. Rev. 455 (2022), which analyzes the Supreme Court’s dicta in Trump v. Mazars that recipients of congressional subpoenas “have long been understood” to retain common law privileges such as the attorney-client privilege. I commend Professor Rapallo’s article for its thorough analysis and defense of Congress’s historic position that it is not obligated to respect the attorney-client privilege or other privileges that stem from the common law, not the Constitution. Just this week his article was named the winner of the 2022 Levin Center Award for Excellence in Oversight Research (which also served as a reminder to me to post on this subject).

When the Mazars decision was announced, I pointed out that to the extent Chief Justice Roberts was commenting on what had “long been understood” by Congress, his observation was clearly wrong and not supported by the sole authority cited for the proposition, a 2003 CRS report by Louis Fisher. Contrary to the chief justice’s assertion, Congress has long asserted that it has discretion to decide whether to accept claims of common law privileges such as the attorney-client privilege. I therefore concluded (somewhat undiplomatically) that “the Supreme Court’s poorly researched dicta on this point should not be given any weight.” Continue reading “The Attorney-Client Privilege in Congressional Investigations after Mazars”