As Bank of America tries to keep some information confidential regarding its merger with Merrill Lynch, the attorney-client privilege might not be a strong enough shield. The New York Times reports this morning that a congressional committee is trying to bypass the privilege.
What the Times story doesn’t address is how Congress can do that. It’s easy, according to the Congressional Research Service: Lawmakers’ powers are in the Constitution, while the privilege is not.
“The legal basis for Congress’s practice in this area is based upon its inherent constitutional prerogative to investigate, which has been long recognized by the Supreme Court as extremely broad and encompassing, and which is at its peak when the subject is fraud, abuse, or maladministration within a government department,” says an April 2008 report from the service.
“The attorney-client privilege,” the report adds, “is, on the other hand, not a constitutionally based privilege, rather it is a judge-made exception to the normal principle of full disclosure in the adversary process which is to be narrowly construed and has been confined to the judicial forum.”
The research service issued its report in 2008 as Congress was attempting to obtain information from the White House about the firing of nine U.S. attorneys in 2006. The report is not binding on anyone, but it gives a concise summary of the issue — at least, from the perspective of researchers who work for Congress. Click here for a copy.
Also supporting the cause of legislators is a February 1999 opinion from the D.C. Bar’s Legal Ethics Committee, the report says. The bar committee wrote that a lawyer should use “all available, legitimate grounds to protect confidential documents and client secrets,” but that, if threatened with contempt of Congress, the lawyer is permitted to turn the documents over.
But, the CRS report warns, bypassing attorney-client privilege is a blunt instrument not to be used lightly. In deciding whether to request documents that are otherwise privileged, a congressional committee might consider “the pertinency of the documents” to its investigation, the “possible unavailability of the privilege” if the witness later sought to raise it in court, and the cooperation of the witness.