Skip to main content
Where Did My Privilege Go? Congress and Its Discretion to Ignore the Attorney-Client Privilege
Criminal Law Bulletin (2011)
  • Don R Berthiaume
  • Jeffrey J Ansley

“The right to counsel is too important to be passed over for prosecutorial convenience or executive branch whimsy. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted... However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law.”[1] So said Senator Arlen Specter on February 13, 2009, just seven months before Congress chose to ignore the very privilege he lauded. Why then, if the right to counsel is as important as Senator Specter articulated, does Congress maintain that its recognition of the attorney-client privilege is purely discretionary, routinely causing witnesses in congressional investigations to provide its committees with confidential communications between counsel and their clients — all the while knowing that doing so could potentially waive the witnesses' rights to claim privilege in concurrent or subsequent judicial proceedings?

  • Attorney-Client,
  • privilege,
  • congressional investigations,
  • congressional investigation,
  • contempt of congress,
  • contempt,
  • 2 USC 192,
  • 2 USC 194,
  • chairman's letter,
  • congress,
  • First Amendment,
  • work-product doctrine,
  • inherent contempt,
  • inherent contempt power
Publication Date
Winter December, 2011
Publisher Statement
This publication was created to provide you with accurate and authoritative information concerning the subject matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
Citation Information
Don R Berthiaume and Jeffrey J Ansley. "Where Did My Privilege Go? Congress and Its Discretion to Ignore the Attorney-Client Privilege" Criminal Law Bulletin Vol. 47 Iss. 2 (2011)
Available at: