Claiming ‘spousal privilege’ now a legal tactic to stonewall Congress

Congress faced another hurdle this week in its effort to establish the record of how, why and when the FBI was given information from Fusion GPS on its controversial investigation of President Trump.

Just last week, Fusion GPS co-founder Glenn Simpson refused to answer any additional questions by invoking his Fifth Amendment privilege against self-incrimination. Now, former Fusion employee Nellie Ohr, the wife of Justice Department official Bruce Ohr, has invoked spousal privilege to refuse to answer questions from the committee. The use of spousal privilege in this context, however, could prove more damaging for Congress than the underlying allegations involving Ohr. Congress needs to seriously examine of the basis and scope of this common-law privilege in the context of an oversight investigation.

Despite exaggerated claims on both sides, Congress has a legitimate interest in establishing the underlying facts concerning the work of Fusion GPS and the novel involvement of the Ohrs. The fact that a secret investigation was launched under the Obama administration targeting associates of a political opponent should concern all citizens. We now know the Clinton campaign funneled a huge amount of money through its campaign counsel to fund the report by former British spy Christopher Steele. Fusion GPS and Steele also actively tried to place negative media stories about Donald Trump during the presidential campaign.

{mosads}The issue is not the overplayed theories of Russian “kompromat” schemes on the left or the overheated conspiracy theories on the right. It is the ongoing concern over the alleged use of the FBI, wittingly or unwittingly, to further political opposition research funded by the Clinton campaign. That is a matter worthy of investigation by oversight committees.

That brings us to Mr. and Mrs. Ohrs. In fairness, Bruce Ohr had a prior relationship with Steele as part of his former FBI duties recruiting high-level Russians and oligarchs. Moreover, it is not clear that Nellie Ohr did significant work on the Steele dossier. However, they remain legitimate witnesses with clearly material information needed by Congress. Among the topics is the fact that the Ohrs met with Steele the day before the FBI opened its investigation into the Trump campaign.

Nellie Ohr’s use of spousal privilege raises questions that go beyond this particular controversy. Early spousal privilege assertions were recognized in England in the early 1600s, based on a belief that such testimony was conceptually impossible since a husband and wife were viewed as one. In the 1800s, this common law “rule of incompetency” was denounced by figures like Jeremy Bentham. Some feminists questioned the rule as sexist.

To put it simply, Nellie Ohr has a recognized separate legal existence in her work with Fusion GPS. To put it simply, this was not what the privilege was originally designed to protect. She is not a wife being asked about stray comments from her husband over dinner. She is an accomplished professional with a stellar record. She holds a degree in history and Russian literature from Harvard, and received a history doctorate degree from Stanford University. She previously taught at Vassar College before joining Fusion GPS. She also is a member of the Women in International Security, which is “dedicated to advancing the leadership and professional development of women in the field of international peace and security.”

It was, therefore, not a surprise for Fusion GPS to be interested in her, entirely separate from her connection to Bruce Ohr. That contradicts suggestions that her hiring was a grand conspiracy. However, it also makes her invocation of the spousal privilege more problematic. Nellie Ohr accepted a position with a political opposition research firm working for Hillary Clinton in one of the most bitterly contested presidential elections in history. She actively sought the involvement of her husband on behalf of Fusion GPS. Yet, when asked about those communications and meetings, Nellie Ohr suddenly became “one” with her husband.

In 1952, the Senate counterpart to the House Committee on Un-American Activities accepted a spousal privilege claim because the questions delved into conversations that occurred in a more conventional marital context of using a spouse to incriminate the other spouse by exposing private conversations.

Nellie Ohr’s invocation raises serious questions over how this privilege should apply with many couples working in the same fields.The privilege is a valuable protection to keep spouses from being used as pawns by politicians or threatened as leverage by prosecutors.

Yet, even under conventional analysis, she may have over-extended the use of the privilege. The testimonial spousal privilege is not recognized in many states but, even when recognized, it can allow one spouse to testify against another. The “marital communications privilege” is more broadly applied but only covers confidential communications in a marriage. It is based on the societal importance of protecting the sanctity of a marriage.

Congress, however, is not interested in confidential marital conversations between Nellie and Bruce Ohr. The implications of Ohr’s invocation are hard to overstate. Women have struggled mightily to establish careers separate from their husbands. This invocation undermines that progress. On one hand, some might question the hiring of a woman in light of the complications of her legal “incompetency.” On the other hand, Nellie Ohr’s invocation could be seen as an opportunity for some employers to potentially shield evidence from disclosure by hiring spouses of powerful members of Congress or other government officials. Nepotism and favoritism already are epidemic in Washington. This adds another nefarious advantage to hiring well-connected employees.

Washington is a small town filled with power couples. Under Ohr’s approach, Senate Majority Leader Mitch McConnell (R-Ky.) and his wife, Transportation Secretary Elaine Chao, could refuse to answer questions on a corruption scandal due to their speaking more as spouses than officials.

Ohr may have been asked questions that inappropriately delved into marital confidences; such questions can threaten the “harmony” of marriages long protected under the rule. If, however, Ohr used the privilege to refuse to answer an array of questions, as was reported, then Congress may want to challenge the assertion or, at the very least, consider how to approach such questions in the future.

Nellie and Bruce Ohr chose to mix their marital and professional worlds. The use of the privilege outside of marital conversations would be opportunistic, obstructionist and increasingly irresistible, if allowed. None of this means that the allegations involving Nellie Ohr are true — but she needs to answer those questions in her professional, not her marital, capacity.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.