No Attorney-Client Privilege for Clinton

by Joseph E. diGenova

Wall Street Journal, December 20, 1995

The 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.

It's 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.

In 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.

In 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.

In 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."

In 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.

He 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.

In 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."

In 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."

In 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 law. ."

The 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."

This 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?