Congress V. the Attorney-Client Privilege: A "Full and Frank" Discussion

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I. INTRODUCTION II. CONGRESS'S POWER TO INVESTIGATE III. THE ATTORNEY-CLIENT PRIVILEGE IV. WHY CONGRESS HAS DISCRETION TO OVERRULE THE PRIVILEGE

A. Legislative History and Practice

B. Judicial Precedents

C. Constitutional Law

D. The Attorney-Client Privilege in Other Non-Judicial Fora

E. Ethical Rules

F. Erie Jurisdictional Law V. CONCLUSION AND RECOMMENDATIONS

I. INTRODUCTION

In late 1995, the Senate Whitewater Committee subpoenaed William Kennedy III, a member of the White House Counsel staff, to produce the notes he had taken at a November 1993 meeting in the offices of President Clinton's personal law firm, William & Connolly.(1) Also in attendance at that meeting were the President's personal counsel, David Kendall, and White House Chief Counsel Bernard Nussbaum.(2) Kendall resisted the subpoena, arguing that the meeting pertained to confidential legal advice for President Clinton, and that his notes were therefore protected by the attorney-client privilege.(3) Unswayed, the committee began enforcement proceedings under the Senate civil enforcement statute.

Before this mechanism became necessary, however, the notes were turned over under an agreement that the disclosure would effect no waiver of the attorney-client privilege with respect to other matters.5 Thus Congress and the White House avoided a significant confrontation over the applicability of the privilege to the information sought by the committee. The issue faced by the Administration was not only that the privilege as developed by the courts might not have applied to the meeting, but also that the committee could have decided to overrule a claim of attorney-client privilege that a court would have upheld.

Most clients, and probably many lawyers, assume that the attorney-client privilege protects their confidential communications against disclosure in any legal proceeding. Throughout the history of legislative investigations, however, sporadic debates have erupted over whether the privilege applies to testimony given to a congressional committee.(6) This Note argues that congressional witnesses are not legally entitled to the protection of the attorney-client privilege, and that investigating committees therefore have discretionary authority to respect or overrule such claims as they see fit. Part H briefly discusses Congress's investigatory and contempt powers. Part M outlines the rationale for and contours of the attorney-client privilege. Part IV examines and rejects the arguments advanced in support of a witness's right to invoke the privilege before Congress. Part V argues that Congress should sometimes exercise its discretion to overrule claims of attorney-client privilege.

II. CONGRESS'S POWER TO INVESTIGATE

Congress has an implied constitutional power to conduct investigations. This power is a corollary to Congress's expressly delegated legislative function.(7) The power to investigate is broad and must only be "related to, and in furtherance of, a legitimate task of the Congress."(8) However, the power may not be exercised in derogation of various constitutional protections, including those against compulsory self-incrimination and unreasonable searches and seizures.(9)

Congress can enforce its subpoenas by instituting contempt proceedings against a witness in one of two ways. First, either House of Congress may choose to arrest, try, and punish a witness pursuant to its implied contempt power.(10) This practice has fallen out of favor, however, since the creation of Congress's second enforcement mechanism, the contempt statute,(11) originally enacted in 1857.(12) The current version provides as follows:

Every person who having been summoned as a witness by the authority of

either House of Congress to give testimony or to produce papers upon any

matter under inquiry before either House, or [any committee thereof],

willfully makes default, or who, having appeared, refuses to answer

any question pertinent to the question under inquiry, shall be

deemed guilty of a misdemeanor, punishable by a fine of not more

than $1,000 nor less than $100 and imprisonment in a common jail

for not less than one month nor more than twelve months. …