Attorney-Client Privilege for Clinton
by Joseph E. diGenova
first thing to remember in considering President Clinton's refusal last week
to comply with a Senate Whitewater Committee's subpoena for notes from a
1993 meeting between his personal lawyers and White House attorneys, is that
the U.S. Congress is not a court of law. Congress's power to investigate is
almost unfettered; no court has ever ruled that attorney-client privilege
applies in congressional hearings.
hard to imagine how Mr. Clinton could win the court case that is about to
ensue; the law and tradition of congressional investigations are simply not
on his side. Since the founding of the republic, Congress has consistently
maintained that the privilege "cannot be claimed as a matter of right
before a legislative committee," as a congressional study put it in the
mid-'80s - though it occasionally may do so as a matter of courtesy. It has
based this view on English common law and parliamentary history, as well as
on congressional tradition. Most important of all, both houses of Congress
have declined to adopt changes to their chambers' standing rules to
incorporate any specific recognition of attorney-client privilege.
the 19th century, during a House investigation of the Credit Mobilier
scandal, the counsel to the Union Pacific Railroad was held in contempt of
Congress and jailed in the Capitol for invoking the privilege and refusing
to disgorge documents.
1934, Sen. (later Justice) Hugo Black, as chairman of a panel investigating
common carriers, refused to recognize the privilege for papers being held by
William MacCracken, an attorney for some of the carriers. Black decided that
none of the papers in MacCracken's possession could be withheld under the
claim of privilege.
the 1970s and '80s, John Dingell's infamous and feared House Subcommittee on
Oversight and Investigations routinely rejected claims of attorney-client
privilege. Chairman Dingell was fond of saying: "It is my firm
conviction that the commonwealth precedents, customs of both the Commons and
the House, fully sustain rejecting a claim of attorney-client privilege if
it impedes in any manner whatsoever the necessary inquiries of the Congress
in determining whether a law of the United States may have been violated or
whether that law accords sufficient protection to the American people."
observing that the Dingellian principle was "gaining credence on the
Hill," James Hamilton, counsel to the Watergate Committee in the 1970s,
called it "pernicious" at an American Bar Association conference
in the 1980s. Indeed, during Mr. Hamilton's Watergate tenure, constitutional
guardian and civil libertarian Sam Ervin refused to recognize the privilege
for any government lawyer in the performance of official duties.
declined, for example, to permit Justice Department official Robert Mardian
to invoke it. Claims of privilege were likewise rejected for G. Gordon Liddy,
Bebe Rebozo and Herbert Kalmbach, President Nixon's personal attorney.
Unlike Mr. Clinton, Mr. Nixon waived the privilege with regard to White
House Counsel John Dean's testimony.
1986, while I was U.S. attorney for Washington, D.C., a House Foreign
Affairs subcommittee looking at the business activities of former Philippine
President Ferdinand Marcos rejected a claim of attorney-client privilege and
held two attorneys in contempt for failing to produce documents. The
subcommittee "determine [d] that the legislative need for the
information outweigh[ed] the arguments against production."
the course of determining whether to recognize attorney-client privilege,
the Democratic-controlled subcommittee did an exhaustive study of its
application in Congress and opined: "Congress has taken a limited view
as to the applicability of [the] attorney-client privilege. Congressional
committees have entertained, as a matter of discretion, claims of such
privilege. However, where in the particular circumstances an investigation
determines that the legislative need for the information outweighs the
arguments against production, such production has been required."
the Iran-Contra hearings, the Select Committee recognized attorney-client
privilege for Richard Secord, Albert Hakim and Oliver North but maintained
it didn't have to. It was a matter of discretion, it said, not a matter of
bottom line is that the attorney-client privilege is not constitutionally
grounded and has no judicially recognized place in the lexicon of
congressional probes. In 1959 in Barenblatt v. U.S.,
Justice John Marshall Harlan said that "the scope of the power of
inquiry is, in short, as penetrating and far-reaching as the potential power
to enact and appropriate under the Constitution."
legal history is not obscure. It is well known to every lawyer who does
business on Capitol Hill. Why, one wonders, have the lawyers who live in the
White House chosen to ignore it?