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.

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Photo of Robert Kelner Robert Kelner

Robert Kelner is the chair of Covington’s Election and Political Law Practice Group. Mr. Kelner provides political law compliance advice to a wide range of corporate and political clients.  His compliance practice focuses on federal and state campaign finance, lobbying disclosure, pay to…

Robert Kelner is the chair of Covington’s Election and Political Law Practice Group. Mr. Kelner provides political law compliance advice to a wide range of corporate and political clients.  His compliance practice focuses on federal and state campaign finance, lobbying disclosure, pay to play, and government ethics laws, as well as legal ethics rules.  His expertise includes the Federal Election Campaign Act, Lobbying Disclosure Act, Ethics in Government Act, Foreign Agents Registration Act, and Foreign Corrupt Practices Act.  He is also a leading authority on the arcane rules governing political contributions by municipal securities dealers, investment advisers, hedge funds, and private equity funds.  Mr. Kelner advises Presidential political appointees on the complex process of being vetted and confirmed for such appointments.

In addition, he regularly advises corporations and corporate executives on instituting political law compliance programs.  He conducts compliance training for senior corporate executives and lobbyists.  He has extensive experience conducting corporate internal investigations concerning campaign finance and lobbying law compliance, as well as other corporate compliance matters.  Mr. Kelner regularly defends clients in investigations by the Federal Election Commission, the U.S. Department of Justice, the U.S. House & Senate Ethics Committees, the House Oversight & Government Reform Committee, the House & Senate Judiciary Committees, the House Energy & Commerce Committee and its Subcommittee on Oversight & Investigations, the Senate Finance Committee, the Senate Special Committee on Aging, the Senate Permanent Subcommittee on Investigations, the Senate Health, Education, Labor, and Pensions Committee, and other congressional committees.  He has prepared numerous CEOs and corporate executives for testimony before congressional investigation panels, and he regularly leads the Practicing Law Institute’s training program on congressional investigations for in-house lawyers.  He also defends clients in Lobbying Disclosure Act audits by the GAO and enforcement actions and audits by state election and lobbying enforcement agencies.

Mr. Kelner has appeared as a commentator on political law matters on The PBS News Hour, CNBC, Fox News, and NPR, and he has been quoted in the New York Times, Washington Post, Wall Street Journal, Legal Times, Washington Times, Roll Call, The Hill, Politico, USA Today, Financial Times, and other publications.

Photo of Brian D. Smith Brian D. Smith

Brian Smith provides strategic and legal advice on matters that require substantial political, reputational, or government relations considerations.  He represents companies and individuals in high-profile or high-risk investigations, particularly congressional investigations, criminal investigations with political implications, and investigations related to political law compliance. …

Brian Smith provides strategic and legal advice on matters that require substantial political, reputational, or government relations considerations.  He represents companies and individuals in high-profile or high-risk investigations, particularly congressional investigations, criminal investigations with political implications, and investigations related to political law compliance.  He has significant experience in crisis management, where he advises clients facing combined legal, political, and media relations risks.  His practice also includes the development and execution of government relations initiatives, including securing the U.S. government’s political support on behalf of U.S. companies facing international legal issues.

Photo of Perrin Cooke Perrin Cooke

Perrin Cooke is an associate in the firm’s Washington, DC office and a member of the White Collar Defense and Investigations, Election and Political Law, and Public Policy practice groups.

William Sokolove

William Sokolove is an associate in the Congressional Investigations, Election and Political Law, and White Collar Defense and Investigations Practice Groups. He advises clients cooperating with and responding to high-profile investigations before Congress and the Department of Justice that entail significant legal and…

William Sokolove is an associate in the Congressional Investigations, Election and Political Law, and White Collar Defense and Investigations Practice Groups. He advises clients cooperating with and responding to high-profile investigations before Congress and the Department of Justice that entail significant legal and reputational risks. He is familiar with each phase of the investigatory process, including preparing for congressional hearings and responding to subpoenas and requests for documents.

William is an active member of the Firm’s LGBT+ Affinity Group and maintains a robust pro bono practice. He has significant experience litigating on behalf of tenants facing eviction.

Prior to joining the Firm, William was a law clerk on the Senate Judiciary Committee and worked on successful congressional and state attorney general campaigns.