Current political priorities in Congress will continue to push many industries under the microscope of Congressional investigations, including universities, tech companies, entities that receive federal funds, and energy-sector companies. When the chambers of Congress and the executive branch are controlled by the same party, Congressional oversight of the executive branch is less intense and instead public and private sector, state, and local entities are more likely to find themselves in the crosshairs. If a chamber of Congress changes hands in the midterm elections, the focus of the oversight may shift to reflect the policy priorities of the moment and include more executive branch oversight, but even the executive branch is often contending with requests for information that may implicate their dealings with third parties; for example, there is a risk that agency oversight triggers requests for privileged material belonging to a government contractor or grantee. The topics and industries of highest interest may play musical chairs, but entities across sectors would do well to incorporate a few best practices that will mitigate their risk should they end up in the hot seat, either directly or through a government partner.

Unlike enforcement actions in other contexts, Congressional investigations play by different rules. Historically, Congress has recognized properly asserted constitutional privileges—such as those based on the First and Fifth Amendments—but, as a function of the legislative body, it generally does not recognize common-law privileges, such as the attorney-client privilege, the work-product doctrine, and common-interest or joint-defense agreements.

This position is based on the separation of powers doctrine, under which Congress is not bound by common-law from federal courts, and Congress has an inherent right to investigate anything within the “legitimate legislative sphere.” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, at 499 (1975).

The keys to successfully navigating a Congressional inquiry include understanding Congress’s approach to common-law privilege and its committee-specific approach, tracking notable recent developments, and developing best practices for protecting information well before that information is implicated. Because oftentimes, by the time a request arrives, the records Congress is seeking have already been created.

I. Common-Law Privileges

Common-law privileges are bedrock principles that allow for a functional and candid attorney-client relationship. Attorneys need a full understanding of the facts to provide sound advice to their clients, and clients rely on these common-law privileges to share information with their attorneys without fear that the government or third parties will be able to access it. For example:

• The attorney-client privilege protects confidential communications between a lawyer and a client that relate to legal advice or services, covering both oral and written communications. The privilege belongs to the client to waive or invoke.
• The work-product privilege generally protects documents and other tangible things prepared in anticipation of litigation. Unlike the attorney-client privilege, the attorney work-product privilege can cover material prepared by people other than the attorney.
• The common interest doctrine creates an extension of the attorney-client privilege, allowing parties to share information confidentially with others with similar legal interests without waiving attorney-client privilege protections.

In the Congressional setting, blind reliance on these privileges without accounting for the unique approaches that can be taken by different committees is risky.

II. Congress’s Committee-Based Approach

Congress has not adopted a uniform approach to recognizing common-law privileges, other than maintaining that it is not bound by them at all. Instead, each Congressional committee sets its own subpoena-compliance procedures and decides which—if any—common-law privileges it will recognize. Some Congressional sub-committees will even adopt their own rules for conducting investigations. For example, in front of the Judiciary Committee, if a witness seeks to assert a privilege during an interview or deposition, the objection is presented to the Committee Chair; if the Chair overrules the objection and the witness refuses to answer, the Committee may sanction the witness.

In practice, disputes regarding committee requests for information, whether they are document requests, requests for transcribed interviews, or subpoenas, are generally resolved through negotiations. As with many things, the devil is in the details and the appropriate strategy for a particular request is highly fact dependent. But, generally speaking, if a respondent objects to a particular request, the respondent may offer an alternative that meets the committee’s oversight needs (i.e., an accommodation), such as a narrower universe of documents, written responses, nonprivileged responsive materials, in camera review of sensitive materials by a court (or in camera committee review of non-privileged but sensitive material such as trade secrets), or alternative witnesses. There may also be opportunities to narrow the scope of the request or negotiate protections for shared information. The key is understanding the committee, its specific procedures, its oversight objectives, and the risks of information disclosure.

III. Recent Notable Examples and Caselaw

Case law regarding the assertion of common-law privileges in the Congressional setting is sparse, because it seldom makes sense to litigate a dispute regarding Congressional oversight. Committees are often working under tight deadlines and seeking timely and responsive information so they can complete their work, creating opportunities to negotiate a resolution. However, in one notable example, the United States House Select Committee to Investigate the January 6th Attack on the United States Capitol (January 6th Committee) issued a subpoena to Chapman University seeking emails from its employee, attorney John Eastman. Eastman sued in the Central District of California to stop Chapman from complying with the subpoena, and he asserted First Amendment, Fourth Amendment, and common-law attorney-client privileges. Eastman v. Thompson, 594 F. Supp. 3d 1156, 1174-75 (C.D. Cal. 2022). In its brief, the January 6th Committee asked the Court to rule on all the privilege claims, notably not deferring determination of whether the common-law attorney-client privilege applied to itself and thus potentially implying that the determination was not the Committee’s to make. Id. However, the Court ultimately ruled in the Committee’s favor on a crime-fraud exception argument and, in its brief, the Committee preserved the argument that it maintained the authority to assert its discretion to determine if common-law privileges were applicable in other proceedings.

The Supreme Court has not directly considered Congress’s assertion that it is not bound by common-law privileges. However, in its decision in Trump v. Mazars, Chief Justice Roberts noted, in dicta, that the individuals subpoenaed by Congress “have long been understood to retain common-law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege.” 140 S. Ct. 2019, at 2032 (2020). While this could be read as the Court seeing no distinction between the privileges Congress must recognize and may recognize, in Bragg v. Jordan, the Southern District of New York interpreted the language to merely reiterate the status quo, which is that a witness has a right to invoke a privilege during a Congressional investigation, but it may ultimately be overruled by the investigating committee. No. 1:23-cv-3032 (S.D.N.Y. Apr. 19, 2023).

IV. Best Practices

Given the reputational, financial, and legal risks already inherent in Congressional investigations, it can seem daunting to also navigate the uncertain privilege landscape. Moreover, privilege issues can arise most directly in the context of Congressional inquiries directed to an entity. But they can also arise indirectly in Congressional inquiries directed at executive branch agencies. While a full exploration of this issue is beyond the scope of this particular piece, if a government agency turns over information that piques the committee’s interest in a third party with whom the government has dealings, there could be two relevant privilege analyses relating to the government’s communications with its counsel and the private party’s communications with its counsel. A private entity may very well have turned over documents to its government partner in connection with, for example, a contract or grant, a joint transaction, or agency oversight. While not privileged, this information may end up being more widely shared than an entity anticipated when it submitted the information to the agency, as the agency may very well receive later Congressional inquiries implicating those records (including privileged materials), in which case having taken steps to protect them at the outset could inform whether and how the government turns them over.

There are best practices and concrete strategies that entities and individuals can use to mitigate their risk; because the privileges are unreliable in the context of Congressional investigations, some of these strategies serve to maximize negotiating leverage by having clear, compelling privilege claims.

• Communicate with care, including:
  • • using intentional and appropriate headings, such as “attorney-client privilege” and “attorney-work product,” including when undertaking privileged work with third-party consultants (e.g., forensic auditors);
    • for in-house counsel, clearly separating business and legal communications, and appropriately marking legal communications; and
    • limiting third-party access to privileged information in order to minimize waiver arguments.
• Have counsel retain third-party consultants (e.g., forensic accountants, digital forensic experts) to work at counsel’s direction.
• Do not assume that any common-law privileges will apply in a Congressional setting.
• Attempt to negotiate guardrails and accommodations with the Congressional committee that issued the subpoena, potentially including privilege logs and limited reviews (e.g., summaries of documents or redacted documents).
• Be careful about relying on common-interest agreements, as there is scant and unsettled case-law on these, and committees may express skepticism that parties may be coordinating their responses, which could increase interest in these communications.
• Assess the potential risk that information being shared with any executive branch entity could become the subject of Congressional oversight in the future and take appropriate steps to protect the information from public disclosure.