The American College of Trial Lawyers has issued this paper on the attorney-client privilege in congressional investigations. The ACTL is, not surprisingly, highly skeptical of Congress’s traditional claim not to be bound by the privilege, and it makes some forceful arguments on the other side. It also provides some helpful guidance for practitioners who wish to preserve the privilege in congressional investigations, as well as for committees that wish to avoid unnecessarily trampling upon it.
Overview of Investigatory Authorities of House and Senate Committees
Michael Bopp of Gibson Dunn has prepared this useful guide to the investigative authorities of House and Senate Committees. For each committee, the attached table identifies who can issue subpoenas, how they are enforced, quorum requirements for taking testimony and whether deposition authority exists.
Law Professors Lecture Congress on Stuff They Know Nothing About
A group of law professors and labor policy experts have written this letter to Darrell Issa, Chairman of the House Oversight and Government Reform Committee (COGR), expressing their grave concerns over “threats to compel disclosure of privileged documents” from the National Labor Relations Board. COGR is investigating the NLRB’s decision to bring an action against Boeing for shifting work from a union plant in Washington State to a new non-union facility in South Carolina. Yesterday COGR issued a subpoena to the NLRB, seeking a broad range of documents relating to the agency’s investigation of Boeing in order to obtain “complete facts about the NLRB’s rationale and its decision making process in this matter.”
The letter asserts that the documents COGR is seeking will likely include some relating to settlement discussions, litigation strategy and “other key factors in deciding to file the Complaint.” It suggests that these documents are privileged, and that the privileged nature of the documents is illustrated by the Administrative Law Judge’s refusal to order that they be produced in the pending litigation.
The law professors claim that “[u]nder current law, Congress must look to how the courts would handle the assertion of attorney-client and work product privilege claims when determining whether to press for these documents.” In support of this proposition, they cite Mort Rosenberg’s “Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry” 32-37(1995). No other support is provided.
If you go to page 32 of the cited Rosenberg report (which evidently none of the professors did), you will see the following: “The precedents of the Senate and the House of Representatives, which are founded on Congress’ inherent constitutional prerogative to investigate, establish that the acceptance of a claim of attorney-client or work product privilege rests in the sound discretion of a congressional committee regardless of whether a court would uphold the claim in the context of litigation.” (emphasis added)
Hmm, that sounds like the exact opposite of what the professors said.
As anyone who knows Mort Rosenberg would realize, he does not support the proposition that the courts can dictate, even indirectly, how Congress conducts its oversight activities. As he explains on page 36 of the same report: “the suggestion that the investigatory authority of the legislative branch of government is subject to non-constitutional, common-law rules developed by the judicial branch to govern its proceedings is arguably contrary to the concept of separation of powers. It would, in effect, permit the judiciary to determine congressional procedures and is therefore difficult to reconcile with the constitutional authority granted each House of Congress to determine its own rules.”
Moreover, while it is true that Congress will normally follow judicial precedents with respect to determining the contours of the attorney-client privilege with respect to private parties, it is not at all clear that government agencies like NLRB even have the right to assert attorney-client privilege as against Congress. Cf. In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998), cert. denied 525 U.S. 996 (1998) (government attorney may not invoke attorney-client privilege in a grand jury proceeding). There is no reason why the advice given by executive branch lawyers should be entitled to special protection in a congressional investigation.
When a government agency wishes to withhold information from Congress regarding a pending litigation or investigation, the matter is typically evaluated under the deliberative process privilege. The issues raised by the professors with regard to the NLRB proceeding, such as the potential for interference with an ongoing proceeding and the disclosure of litigation strategy, etc., must be weighed against considerations that militate in favor of immediate congressional action, such as the need to consider a legislative fix to resolve the economic hardship caused by Boeing’s inability to commence operations in South Carolina. Ultimately the weighing of these competing considerations is in the discretion of the committee.
Again to quote Rosenberg, “[d]espite objections by an agency, either house of Congress, or its committees or subcommittees, may obtain and publish information it considers essential for the proper performance of its constitutional functions. There is no court precedent that requires committees to demonstrate a substantial reason to believe that wrongdoing occurred before seeking disclosures with respect to the conduct of specific criminal and civil cases, whether open or closed. Indeed, the case law is quite to the contrary.”
If these labor law professors want to opine on congressional procedure, perhaps they should learn a little about it first.
The First Witness at the Clemens Trial
The prosecution opened the Clemens trial today by having Charles Johnson, former House Parliamentarian and one of the world’s leading experts on the House of Representatives, read House Mouse, Senate Mouse to the jury.
Ok, I am making that up, but it was pretty close. The first exhibit offered by the prosecution was the U.S. Constitution. (I am not making that up). Apparently the prosecution needed Johnson to explain to the jurors that Article I establishes a Congress, consisting of a House and Senate, and grants it legislative powers.
The next exhibit was a photograph of the U.S. Capitol. Charlie correctly identified as such. Shockingly, there was no cross-examination on that point.
For the more substantive part of his direct testimony, Johnson explained the rules of the House, the role of committees, the broad investigatory jurisdiction of COGR, and the fact that it has been granted deposition authority by the House. Pretty much what I expected.
Johnson specifically described COGR’s investigatory jurisdiction as uniquely broad among House committees because it includes both its own legislative jurisdiction and that of any other committee of the House. He also mentioned the fact that COGR is supposed to report findings and recommendations to the committee of legislative jurisdiction. (I didn’t hear any discussion of whether it did so). There was no cross on this point.
One interesting question from the prosecution. Johnson was asked whether one purpose of committees holding public hearings was to convey information to the public. Johnson agreed that this was a “by-product” of public hearings, but demurred somewhat on whether this was a primary purpose of such hearings. There was no cross-examination on this point either.
When it was his turn, Rusty Hardin concentrated on getting Johnson to acknowledge that the congressional investigatory power was not unlimited. Johnson didn’t provide much assistance on this point, but he acknowledged that Congress cannot “expose for the sake of exposure” and that it lacks the authority to conduct a trial.
Clearly a major theme of the defense will be that COGR improperly exercised its investigatory authority to conduct a trial of private misconduct, rather than for legitimate legislative purposes. It remains to be seen how far the court will let it take this theme.
“This is Not a Love Making Process”
So explained Charles Tiefer, former Solicitor and Deputy General Counsel to the House and former Assistant Senate Legal Counsel, speaking at a hearing of the House Committee on Oversight and Government Reform yesterday. Tiefer was not talking about the latest congressional sex scandal, but advocating for an aggressive congressional posture when the executive branch withholds information sought by a committee in the course of conducting oversight.
Tiefer was joined on the panel by Mort Rosenberg, Lou Fisher and Todd Tatelman. I would explain who these guys are, but you probably already know, or else you would have stopped reading after learning that this post is not Weiner-related.
The panel ably laid out the constitutional and historical basis for congressional oversight of the executive, including the House’s 1792 decision to appoint a special committee to investigate General Arthur St. Clair’s failed military operation against Indian tribes (referenced in my last post). They were speaking in the context of the Justice Department’s failure to comply with a congressional subpoena for documents related to “Operation Fast and Furious,” an ATF weapons sting that appears to have gone about as well as General St. Clair’s expedition. Most of the testimony, however, did not focus on the specifics of the particular information dispute, but on numerous historical examples of executive branch recalcitrance in the face of congressional oversight, and the need for persistence in overcoming these types of objections.
The hearing and/or written testimony is well worth reviewing by anyone interested in congressional oversight. The witnesses are certainly among the foremost experts on the subject. As Chairman Issa aptly concluded, “we haven’t brought this much intellectual capital to a hearing in a very, very long time.”
What Information Can Congress Get from Libyan Agents?
In 2002, in the course of investigating abductions of U.S. citizens in Saudi Arabia, the House Government Reform Committee subpoenaed three U.S. firms (Patton Boggs, Qorvis Communications and The Gallagher Group), which had provided lobbying and public relations services to the Saudi government. Each firm was registered under the Foreign Agents Registration Act (FARA), which requires registrants to maintain, and make available for Justice Department inspection, extensive documentation regarding the foreign representation.
The Saudi government maintained that the subpoenas violated the Vienna Convention on Diplomatic Relations, which provides that “archives and documents” of a diplomatic mission are to be held “inviolable.” The House committee, backed by an opinion from Vienna Convention expert Eileen Denza, argued that the Vienna Convention was inapplicable to records of U.S. lobbyists for a foreign government. It noted that the Saudi position was incompatible with FARA and pointed out that Congress had previously investigated the activities of lobbyists for foreign governments (in 1980 the Senate Judiciary Committee investigated Billy Carter’s lobbying on behalf of Libya).
Congress will want to keep this background in mind as it considers gathering information from Libyan agents in the U.S. There are several U.S. firms that reportedly have contracted with the Libyan government to provide lobbying, public relations or other services. Some registered under FARA; others did not. Congress may want to obtain information from these firms to better understand Libya’s propaganda campaign in the U.S. and to determine whether FARA has been effective in making this campaign transparent.
I have always thought that the Saudi Vienna Convention argument was pretty weak (I represented the House committee in that dispute). Moreover, under the present circumstances it seems unlikely that U.S. firms would abide by Libyan instructions to withhold information from Congress. Thus, I suspect that Congress would have little difficulty getting information from Libya’s U.S. representatives.
A more difficult question will be presented if Congress attempts to get documents or testimony directly from Libyan diplomats. Presumably these officials would normally enjoy immunity from congressional inquiry. However, there are two wrinkles here that could make a difference.
First, there is the question of which Libyan government is entitled to representation in the U.S. As far as I understand it, the U.S. has not yet withdrawn recognition from the Qadaffi regime or extended it to the Libyan rebels. If this change occurs, however, it could affect the privileges and immunities available to Libya’s (former) diplomats.
Second, some Libyan diplomats in the U.S. have already broken with the Qadaffi regime. Are these officials still entitled to diplomatic immunity/inviolability?
I don’t know the answers to these questions. But lawyers on the Hill may want to start thinking about them.
The Attorney-Client Privilege in Congressional Proceedings
Congressional practitioners will be interested in this article in the Journal of Law and Politics on the attorney-client privilege and work product doctrine in congressional proceedings. (Bradley Bondi, “No Secrets Allowed: Congress’s Treatment and Mistreatment of the Attorney-Client Privilege and the Work-Product Protection in Congressional Investigations and Contempt Proceedings”). As the title implies, Bondi is critical of Congress’s assertion of the authority to disregard the attorney-client or other common law privileges. While he concedes that Congress, like the British Parliament, may have the power to disregard privileges in inherent contempt proceedings (ie, where Congress uses its own contempt authority to try and imprison a contumacious witness), he argues that the situation is different with respect to statutory contempt proceedings under 2 U.S.C. § 192.
Bondi uses the legislative history of the statute, which was enacted in 1857, to show that Congress itself was uncertain of the default rule that applied in congressional proceedings. Some legislators assumed that Congress was bound to respect common-law privileges, while others believed that it had the power to overrule them. He also points to the fact that Congress has generally respected the attorney-client privilege since the enactment of the statute, although the relevance of this practice to the interpretation of the statute is unclear.
If a court were faced with the question of whether the statute permits prosecution of a witness who asserts an otherwise valid attorney-client privilege (ie, a claim of privilege that would be recognized at common law or in judicial proceedings), its conclusion would likely be dictated by the presumption that it starts with. Since the statute itself is silent on its applicability to claims of attorney-client privilege, the court might hold that the statute should not be construed in derogation of a firmly established common law privilege. Alternatively, the court might start with the presumption that the statute was intended to preserve the traditional legislative authority to overrule privileges and therefore reach the opposite conclusion.
Given the difficulty of this question, however, a court is likely to look for ways to avoid deciding it. And there is likely to be an easy way for it to do so. Under current congressional procedures, while a witness can argue his privilege claim to a congressional committee, there is no way to present the claim to the full House or Senate prior to being held in contempt. But if the power to disregard privileges exists, it certainly inheres in the full legislative body, not in committees. Thus, if a witness has a judicially valid claim of privilege, he can argue that it was a violation of due process to hold him in contempt without first giving him an opportunity to argue the claim before the full legislative body.
Issa to Towns: Just the Facts, Man
A recent post suggested the possibility that Toyota could seek to prevent its former attorney, Dimitrios Biller, from disclosing attorney-client privileged documents to Congress in response to a subpoena. Toyota, however, apparently did not attempt to do so, and the House Committee on Oversight and Government Reform has obtained the responsive documents.
Now a dispute has broken out between the majority and minority regarding the proper interpretation of the documents. Specifically, Republican Ranking Member Darrell Issa has sent this letter to Chairman Edolphus Towns, identifying four specific areas in which Towns and his staff have allegedly mischaracterized the documents received from Biller. Issa’s staff contends that a letter sent by Towns “frequently misquotes and mischaracterizes the underlying material, in one extreme case, actually altering the subject of the underlying document.”
It is not unusual for the majority and minority to find themselves on opposite sides of an investigation, with the majority acting as “prosecutors” and the minority as “defense counsel.” This investigation, however, has been, in Issa’s words, a “successful bipartisan effort” up to this point, and Issa has been just as critical of Toyota as Towns. Issa’s objection is not based on a differing perspective on Toyota’s culpability, but simply on the notion that congressional committees have an obligation to ground their conclusions in a fair reading of the evidence presented to them.
Having no access to the underlying documents, I have no opinion on whether Issa is correct on these specific criticisms. Given the incentives for congressional committees to use investigations as sound-bite generating machines, however, Issa’s admonition is worth highlighting.
Will Toyota Sue to Prevent Congress from Getting its Attorney-Client Privileged Documents?
The National Law Journal reports that the U.S. House Committee on Oversight and Government Reform has subpoenaed a former Toyota attorney named Dimitrios Biller, seeking internal documents relating to Biller’s defense of Toyota in rollover litigation from 2003 to 2007. Biller left the company on bad terms in 2007. Subsequently, he accused it of concealing or destroying evidence in personal injury cases, and
This raises some interesting issues about the role of the attorney-client privilege in congressional proceedings. In a previous post, I explained that Congress has generally asserted a right to disregard the attorney-client privilege (and other common law privileges). This claim is not one that sits well with the American Bar Association or the legal profession in general. Nevertheless, it is extremely difficult, as a practical matter, to contest Congress’s position. A lawyer who receives a congressional subpoena for privileged information cannot challenge it in court (because the Speech or Debate Clause precludes a suit against the congressional committee that issued the subpoena). Thus, he or she must either comply with the subpoena or risk being held in contempt, with the possibility of facing criminal fines or prison.
In 1999 a legal ethics panel of the D.C. Bar ruled that a lawyer who was subpoenaed to provide privileged information to a congressional subcommittee had “a professional responsibility to seek to quash or limit the subpoena on all available legitimate grounds to protect confidential documents and client secrets.” Once, however, the congressional subcommittee overruled these objections and threatened to hold the lawyer in contempt, there was no longer a professional obligation to resist. The panel found that “[a] lawyer has satisfied his or her professional obligation to maintain client confidences once all objections have been made and exhausted and is not required by the Rules to stand in contempt of Congress if the subcommittee overrules the objections.” Importantly, however, there is an exception to this rule if the client obtains a court order forbidding the lawyer from complying with the congressional subpoena.
In most cases the lawyer and the client have aligned interests, and a judge might be reluctant to intervene in a congressional matter simply because client files a collusive lawsuit against the lawyer. In the current situation, however, there is a genuine adversarial relationship between
Congress Versus Bank of America’s Attorney-Client Privilege
The House Committee on Oversight and Government Reform has been conducting an investigation of Bank of America’s acquisition of Merrill Lynch, including the question of whether BOA learned information prior to the closing of that transaction which fell within the “material adverse change” provision of the merger agreement and whether BOA was required to make disclosures of this information to its shareholders. As part of this investigation, Chairman Edolphus Towns sent a letter dated August 6, 2009 to BOA CEO Ken Lewis requesting the production of documents, including records of legal advice BOA received relating to the material adverse change provision and its disclosure obligations.
On September 9, 2009, BOA responded to Chairman Towns by letter from its attorneys at WilmerHale. Not surprisingly, BOA argues that many of the documents responsive to the Committee’s request “are documents that fall into the core of the common law privilege for attorney-client communications.” BOA points out that if it were to produce these documents voluntarily in response to the Chairman’s letter, it would likely waive the attorney-client privilege with respect to other investigators (such as the SEC or DOJ) and third parties. Accordingly, BOA “respectfully request[s] that the Committee withdraw its request for voluntary production of [these] privileged materials.”
The Committee is not disputing that the documents withheld by BOA, at least by and large, are in fact attorney-client privileged. One might wonder, therefore, why BOA simply does not refuse to produce the documents. Apart from the political incentives that BOA has to cooperate with the Committee, the answer is found in the Chairman Towns’s response of September 18, 2009, in which he states that BOA’s attorneys acknowledge that “Congress has the right to refuse to recognize an assertion of the attorney-client privilege.”
Actually, this is not quite accurate. WilmerHale only acknowledged that “Congress has long asserted the right of each chamber to make its own independent determination as to whether to recognize the attorney-client privilege.” Acknowledging the assertion is not the same thing as acknowledging the right. Nonetheless, it is the fact of this asserted congressional authority to disregard the attorney-client privilege that creates the dilemma for BOA.
The basis of Congress’s claimed authority to trump the privilege is simple. Congress’s power to compel the production of information is a constitutional power. Although not expressly granted by the Constitution, this power has been found by the Supreme Court to inhere in Article I’s grant of legislative authority. In contrast, the attorney-client privilege (at least outside the criminal context) is not a constitutional right, but merely a common-law privilege which is generally recognized in state and federal judicial and administrative proceedings. Because the congressional investigatory power is constitutionally based, it seems to follow logically (although many lawyers and judges will be sorely tempted to resist this logic) that it cannot be limited by a non-constitutional privilege created by the courts.
Though the argument is simple, the matter at hand is not. Even if one accepts that Congress has the power to disregard the attorney-client privilege, it does not follow that it should or will do so. As Mort Rosenberg notes in his most recent work on congressional investigations, a committee “can deny a witness’ request to invoke privilege when the committee concludes that it needs the information sought to accomplish its legislative functions . . . [but] [i]n practice . . . congressional committees have followed the courts’ guidance in assessing the validity of a common law privilege claim.”
While Chairman Towns may be inclined to overrule BOA’s privilege claim based on legislative need, he is not the final authority on the issue. In order to hold BOA in contempt for withholding documents, his ruling would have to be upheld by the committee and by the full House. As WilmerHale points out in its letter, there is reason to doubt that a majority of the House would be willing to hold a witness in contempt for withholding information that is truly privileged under the attorney-client doctrine.
Moreover, at this point BOA has not been subpoenaed, but has merely received a request for documents. As a legal matter, BOA would be foolish to produce privileged documents now, as it would surely waive the privilege for the documents produced and risk an even broader waiver of the privilege with regard to the subject matter in question. Even if BOA decides that it would prefer to produce the documents rather than face contempt of Congress, it can avoid a waiver only if it uses its best efforts to resist any subpoena for their production. Exactly how far down the contempt road BOA must go is not entirely clear, but it must at least do everything it can short of being held in contempt in order to avoid a third party waiver.