Should Congress be able to force your spouse, your doctor, your pastor, or your lawyer to testify in investigations to enhance its “public shaming leverage”?
Is a recent post Andy Wright, who served in the Obama White House Counsel’s office, worries that the July 9th Supreme Court decision in Trump v. Mazars will operate to “give the attorney-client privilege a boost in Congress.” I respect Andy a lot, but unlike him, I see this as a potentially positive development—not just because I believe we need to halt the erosion of the attorney-client privilege, but also because it might also “boost” privileges associated with communications with spouses, doctors, and the clergy, which in many ways are the last bastions of privacy in today’s world.
The disturbing decline in the attorney-client privilege
Here on Lawfire®, we’ve long been concerned about the disturbing decline in the attorney-client privilege (“Is the attorney-client privilege dead? (No, but it may not be as robust as you thought)”, as well as the way some government agents conduct investigations that, as a practical matter, operate to deprive suspects of the legal legal expertise they need (“Are tactics that deprive the disfavored of the specialized legal representation needed in complex cases something to celebrate?”).
As Andy correctly describes it, Mazars involved “President Donald Trump’s efforts to block congressional subpoenas served on accounting and banking entities in possession of records prior to his assuming office.” He adds:
At the top line, the Court held that congressional subpoenas for the president’s information may be enforceable. However, the Supreme Court also held that the lower courts did not take adequate account of the significant separation-of-powers concerns stemming from subpoenas from the House of Representatives seeking Trump’s financial records.
What bothers Andy is what he says is a “small, inaccurate assertion by the Court” wherein it said that “recipients [of congressional subpoenas] have long been understood to retain common law and constitutional privileges.” Andy insists this statement is wrong, as he believes common law privileges have never been held to bind congressional investigations as is ordinarily the case with law enforcement and judicial activities.
Does Congress have authority to breach common law privileges?
What are “common law privileges”? Andy explains they “include attorney-client, doctor-patient, priest-penitent, and spousal privileges.” A January 2020 Congressional Research Service (CRS) report says this:
The Federal Rules of Evidence recognize testimonial privileges for witnesses in judicial proceedings so that they need not reveal confidential communications between doctor and patient, husband and wife, or clergyman and parishioner. Although CRS found no court case directly on point, it appears that congressional committees are not legally required to allow a witness to decline to testify on the basis of these other, similar testimonial privileges. (Emphasis added)
Andy contends that the Supreme Court’s language (which he considers to be non-binding dicta) will help parties resist the production of privileged material. He fears “lawyers will be able to cite that Supreme Court language back to Congress, which will dilute the public shaming leverage Congress often uses to maximize its investigative yield.” (Emphasis added.)
“Public shaming”?
“Public shaming”? I don’t doubt that forcing spouses, doctors, pastors, and – yes – lawyers to publicly reveal to Congress what has been told to them in the seeming confidence of the professional setting has great potential to “shame” people who sought their treatment or counsel.
Even if we could agree there may be situations where publicly shaming someone might serve some legitimate public purpose, the real question is whether Congress should be permitted to use its investigatory authority in a way that undermines common law privileges?
Personally, I strongly disagree with the notion that destroying the ability for people (even those many may consider odious) to have confidential relationships with their spouses and the select professionals covered by common law privileges, simply to allow Congress to embarrass or shame someone they are targeting, is a public good sufficient to overcome the broader societal harm of weakening these relationships.
Is “public shaming” really a proper purpose of Congress’ investigatory authority?
Congress has broad power to conduct investigations. The Legal Information Institute (LII) cites Justice Harlan’s opinion in the 1959 case of Barenblatt v. United States:
“The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”
However, that authority is not unlimited. LII quotes McGrain v. Daugherty:
“[N]either house of Congress possesses a ‘general power of making inquiry into the private affairs of the citizen’; that the power actually possessed is limited to inquiries relating to matters of which the particular house ‘has jurisdiction’ and in respect of which it rightfully may take other action; that, if the inquiry relates to ‘a matter wherein relief or redress could be had only by a judicial proceeding,’ it is not within the range of this power, but must be left to the courts, conformably to the constitutional separation of governmental powers; and that for the purpose of determining the essential character of the inquiry recourse may be had to the resolution or order under which it is made.” (Emphasis added.)
It is also worth keeping in mind that Congress does not have the power to punish without a judicial trial. In United States v. Lovett (1946) the Court addressed a situation where Congress had passed legislation barring payment of government salaries to certain individuals it considered “subversive.” In finding the statute in that case to be an unconstitutional “Bill of Attainder” the Court found:
“[L]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution. (Emphasis added.)
A “form” of a “legislative act”? Is public “shaming” a “form” of “punishment”?
The question is this: is investigatory activity by a legislative body a “form” of a “legislative act”? Decide for yourself, but I think drawing analogies from the cases described above makes a a strong argument that it is, at least insofar as determining the applicability of common law privileges is concerned.
After all, the LII notes that the “prohibition embodied in [Article I, Section 9, Clause 3 concerning Bills of Attainder and Ex Post Facto laws] is not to be narrowly construed in the context of traditional forms but is to be interpreted in accordance with the designs of the framers so as to preclude trial by legislature, which would violate the separation of powers.”
Moreover, according to Congress’s own description, congressional investigations in both houses are typically establsihed and governed “through authorizing or enabling resolutions” based a majority vote of committee concerned. Investigations are supposed to “probe a particular issue, report on it, and make policy recommendations.” No suggestion is made of any authority for Congress to use investigations for “public shaming leverage.”
Is publicly “shaming” an individual a form of “punishment”? Again, make your own determination, but perhaps consider this language the Court used Lovett. In deciding whether the case was justiciable the Court observed:
Were this case to be not justiciable, congressional action, aimed at three named individuals, which stigmatized their reputation and seriously impaired their chance to earn a living, could never be challenged in any court. Our Constitution did not contemplate such a result. (Emphasis added.)
In my view, a congressional investigation is “congressional action” that is not judicial in nature. Consequently, when Congress’ investigatory authority is used to breach common law privileges to enhance “public shaming leverage,” it enables a punitive result that I believe “our Constitution does not contemplate” or permit.
Public shaming in the Internet age
The punitive nature of public shaming is especially apparent today. Writing in 2015 (“The price of public shaming in the Internet age”) Todd Leopold pointed out that while the phenomena has existed throughout history, the “new shaming” is super-empowered by the “forever” Internet to vastly enhance its impact.
Thus, the information age creates an environment where Congress can, utilizing what might have been understandably thought of as the most private of communications, stigmatize a person’s “reputation and seriously impaired their chance to earn a living” in a way that “could never be challenged in any court” – yet is potentially permanently debilitating.
Leopold cites “Father James Martin, the editor-at-large of America magazine and a Roman Catholic priest, who observes that what starts out as disapproval ends up ‘as a complete shaming of the person’.” Martin appreciates that “i]f someone says something offensive, others are certainly allowed to respond,” and suggests that “if the person is a public figure…then perhaps it would be appropriate that that person resign his or her position.” However, Leopold also said:
[Martin] added, the idea “that the person should have to pay for it the rest of his or her life is unjust.” Even death row inmates are more than the worst act they’ve ever committed, he observes.
You decide: whatever may be the propriety of “public shaming” of someone based on what they said or did publicly, can it really be said that forcing the disclosure of confidences told to spouse, a doctor, a pastor, or a lawyer that would shame someone is anything other than Congress exacting punishment, particularly in the Internet age?
Still, there may be legal authority for Congress to express its displeasure about individuals in the form of, for example, resolutions (which are largely unconstrained) by relying upon unprivileged information or other evidence.
However, I believe there is also ample authority for the Court to conclude that at least in the investigatory setting, Congress cannot breach common law privileges, particularly for the purpose of using properly privileged information to shame individuals or to otherwise “stigmatiz[e] their reputation.”
Everyone needs to have confidential communications at some point.
In this context, we ought to remember we can’t have one rule for individuals who are believed despicable by some in Congress, and another for everybody else. At some point everyone needs to be able talk to their spouse, their doctor, their pastor, or their lawyer with confidence that the intimacies they relate will not be made public for the purpose of shaming them. Some things really are that simple.
With respect to the attorney-client relationship, the need can be especially acute. Why? Today the citizenry is faced with a dizzying array of Federal criminal laws that investigators could exploit to hold people liable for their actions. In fact, one study finds that “it is estimated that nearly 5,000 federal statutes and more than 300,000 regulations contain potential criminal penalties.”
Indeed, one exasperated law professor who studies the scope of federal criminal law was quoted in the Wall Street Journal saying “[t]here is no one in the United States over the age of 18 who cannot be indicted for some federal crime.” In 2014, Politifact concluded that most experts agree with the statement that at least “70 percent of American adults have committed a crime that could lead to imprisonment.”
No one should be expected to navigate that kind of legal mine field without legal assistance. If we believe that everyone – even criminals – deserve zealous legal representation, we need to avoid actions that serve to frustrate that representation. We should not look for opportunities to eviscerate the sanctity of conversations protected under common law privileges—like those with a lawyer.
Concluding observations
I hope the Supreme Court turns its Mazars dicta into a more binding precedent. We live in a world where privacy is eroding every day, but the need for confidential counseling services is becoming ever more acute.
The power to compel one’s most trusted confidants – spouses, mental health providers, clergy, and attorneys – to publicly disclose often highly-personal matters simply for the purpose of “shaming” those who sought help should not be within Congress’s authority.
The world will not be made a better place by discouraging (and stigmatizing) those who may desperately need professional help from seeking it. To the contrary, Congress ought to increase access for the growing number of people who need support especially from those with the specialized training and skill to provide it.
Still, remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
