Yesterday, the House Select Committee to Investigate the January 6th Attack on the United States Capitol filed a highly consequential brief in ongoing litigation relating to a subpoena seeking documents involving attorney John Eastman’s alleged participation in efforts to thwart Congress’s certification of the results of the 2020 Presidential election.  Not surprisingly, the Select Committee’s assertion that it has reason to believe that former President Trump and others “engaged in a criminal conspiracy” has drawn the bulk of the media’s attention.  Comparatively little analysis, however, has explored the underlying legal reason that the Select Committee made this newsworthy pronouncement.  The answer provides important clues regarding the applicability of the attorney-client privilege in congressional investigations.

As we have explored elsewhere, Congress has long argued that the attorney-client privilege, the work product doctrine, and other common law privileges do not apply in congressional investigations, while many—including the Supreme Court—have noted that the protections often apply in practice.  Although privilege disputes have arisen in connection with congressional oversight, to date, leaders in both parties have generally avoided directly litigating the issue in federal court.  The Select Committee’s brief in the Eastman litigation appears to be the most recent and high-profile example of Congress’s effort to avoid obtaining a judicial ruling on its position that it is not bound to respect attorney-client privilege or other protections.

Rather than declaring outright that privilege does not apply in the context of congressional oversight, the argument advanced by the General Counsel for the House of Representatives (on behalf of the Select Committee) proceeds largely on the premise that Congress is bound by the privilege.  Indeed, the vast majority of the 58-page brief is dedicated to reasoning that the attorney-client privilege does not guard against disclosure in this case because, among other reasons, the privilege does not apply to legal advice relied upon to engage in illegal conduct.  This invocation of the so-called “crime fraud exception” explains the headline-grabbing summary of then-President Trump’s alleged criminal conduct.

By arguing with little fanfare that the privilege was waived or did not apply due to a narrowly defined and well-established exception to the general rule that confidential attorney-client communications are privileged, the Select Committee’s brief seems to proceed on the implicit  assumption that the privilege generally would apply to its oversight work.  Nonetheless, in a short, easy-to-miss footnote, the Select Committee sought to preserve Congress’s historical position:

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. . . . 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.

The Select Committee’s explicit decision “not to submit an argument” on Congress’s longstanding position seems clearly driven by a preference to avoid direct judicial consideration of the issue, even though it would be dispositive in this case were the court to rule on this basis.

If this initial briefing is any indication, the Eastman case could hold important implications not only for former President Trump and others involved in the events of January 6 but for any party involved in an investigation before Congress.  For those who are or may be the subject of congressional oversight requests, the parties’ further briefing on this issue—as well as any future decisional law arising from the case—merit close attention.