Ethics

As the Times story today signals, a House committee is prepared to require Bank of America to reveal information it has withheld from the SEC and AG Cuomo on grounds of privilege. The privilege doesn't apply in Congress, says the chairman. Numerous members of Congress have said the same over the years. If the assertion is allowed, it is a matter of grace, not right, they say.

 In the 1988 Columbia Law Review, a student note argued that the common law privilege (not FRE 501) applies in Congress. This Note gets a lot of citations and may be the only journal effort to address the issue, at least in the last half century. 

So far as I know, no court has ruled on the question. (Do you know of one?) In an unusual case, I suppose, assertion of privilege may be based

 in the constitutional right to the effective assistance of counsel in criminal cases, but that won't have much traction in the B of A investigation.

Of course, a forced revelation in Congress (on pain of contempt) may not be deemed a waiver of privilege for the same information in court. How could it be?