Top Ten Tips When Facing a Congressional Investigation
This may be a question that no CEO or GC wants to have to ask. But with a new Congress just sworn in, companies, organizations and individuals everywhere can expect to begin receiving letters—or subpoenas—from the various committees of the 116th Congress demanding documents, interviews and formal testimony. Although committee assignments in the House and Senate were just announced on January 3, the chairs and ranking members of each committee have been engaged in planning for some time—in some cases, for months—regarding the types of issues they plan to take on, and in what order.
As those investigative priorities unfold, individuals and organizations should be poised to respond quickly to any requests that come in. Having effective counsel with experience in Congressional investigations is an essential part of this response. With that in mind, here’s a top 10 list of key items to consider when facing a Congressional investigation.
- Congress is the first branch of government—and they want to be sure you remember that. Congress’s duties are enshrined in Article I of the Constitution. And although investigative powers aren’t called out explicitly in the Constitution’s text, they’ve always been presumed to be implied powers that are necessary in order for Congress to legislate. This view is so old that that nation’s founders wrote about the importance of legislative investigative authority in the Federalist Papers, and by 1792—a mere handful of years after the new nation declared independence—Congress was conducting its first investigations. Many members in both houses of Congress consider themselves institutionalists, taking pride in the gravity and significance of their Constitutional role. With that in mind, they take very seriously any inquiries or investigations, and they expect prompt and fulsome responses from investigation targets, witnesses and even tangentially related individuals or organizations that might be able to shed light on issues that are of interest to Congress.
- Congressional investigations aren’t like other litigation. This point can’t be overstated. It’s so central, in fact, that most of the remaining top 10 points are variations on this theme. You may have experienced civil litigators in-house, you may have engaged tremendously capable civil or criminal litigators in the past. If you receive a letter or subpoena from Congress—or any individual member of Congress—don’t ask your lawyers how many cases they’ve tried, or whether they used to be a prosecutor. Ask them whether they’ve ever served as counsel to a Congressional committee, how many witnesses they’ve prepared to testify before Congress, and how many Congressional investigations they’ve defended against. Congress has its own unique rules; no other game prepares you for this.
- There is no single, defined set of rules for discovery, witness interviews or hearings. One of the legislative prerogatives enshrined in the text of the Constitution itself drives many of these other unique attributes. Specifically, under the Constitution, "Each House [of Congress] may determine the Rules of its Proceedings." Not only that, but the rules can be changed at the discretion of the rules committees in each chamber. And each committee has its own set of rules—with some subcommittees issuing their own supplementary guidance and compliance standards (e.g., for the definitions and format for responding to a subpoena). Finally, even within those rules, committees generally have broad latitude to make a range of decisions in how they approach the mechanics of a particular investigation. This wide variation and complex landscape makes it essential to understand the specific rules as well as the unwritten culture of the particular committee responsible for the information request or investigation.
- Subpoena timelines can be very short. Whether a committee issues a request letter or a subpoena, committees often set deadlines as short as a few weeks, even for very complex document production. Deadlines can be even shorter for subpoenas compelling testimony in a high-profile or high-stakes investigation. Unlike court proceedings, there is no impartial arbiter—no judge—readily available to mediate a dispute over production scope or timelines. In theory, both the Congressional committees and the targets or witnesses could seek federal judicial review of subpoena obligations; as a practical matter, however, the process of negotiation, and understanding how to weigh other considerations—such as adverse publicity, potential legislative impacts, and the like—are at least as important as the purely legal considerations that might drive responses to a subpoena in civil or criminal litigation.
- Information requests can be very broad. Hewing to the centuries-old view that comprehensive investigations are essential to making good policy, Congressional committees tend to send very broad requests for information. Whether they’re asking for documents or testimony, Congress typically takes a very wide view of the scope of information which it views as relevant to its investigations. Since Congress is not constrained by any of the rules of procedures that apply in federal or state courts, effective negotiation is essential in managing the scope of these requests, whether they take the form of letters or subpoenas.
- Extensive follow-up requests are not unusual. For the same reasons noted in #5 above, it is frequently the case that document production or testimony will be followed up by requests for additional information, whether those requests come from the committee as a whole, or from individual members. Balancing these demands is a key requirement for managing Congressional investigation.
- Common law privileges don’t necessarily apply. Many recipients of Congressional letters and subpoenas are surprised to learn that they can’t automatically rely on common law privileges like the spousal privilege, doctor patient privilege, or—most often relevant—attorney client privilege to shield information from production. Congress is obligated to respect all Constitutional privileges, such as those arising from the First and Fifth Amendments to the Constitution. But, under the applicable case law in this area, there is real ambiguity over the extent to which Congress must respect common law privileges. Consequently, production of documents and preparation for testimony are often more nuanced, and nuanced in different ways, than is the case in typical litigation discovery under federal or state court procedural rules.
- There are multiple viewpoints on each committee. In criminal prosecutions, the government has already taken a single position; in civil litigation, plaintiffs are typically aligned, even in complex multi-party litigation. However, in Congress, it is highly likely that, for every investigation, there are widely varying views among and between the members on the committee. Certainly there will be different viewpoints among Democrat and Republican members on many investigative subjects; but even within each political party, there are typically widely differing views among the members and their staffs. These differences in viewpoint can add a layer of complexity to the investigations, and should be taken into account in anticipating the issues likely to arise.
- Congress has extremely broad latitude in deciding what information it can make public. Under the Speech and Debate clause of Article I, members of Congress have almost unfettered latitude to comment on any matter that falls within their jurisdiction. As a consequence, members of Congress may comment publicly about investigations in ways that would be considered out of bounds in other types of litigation or prosecutions, and Congressional committees may choose to release to the public information that a target or witness hoped the committee would maintain in confidence. As with so many other issues, there is no judge to issue gag orders or permit filing under seal or manage the many other mechanisms that can be applied in state and federal courts.
- The risks from Congressional investigations are wide-ranging. Congressional inquiries can lead to new legislation, to policy recommendations, to criminal referrals and to negative or unwanted publicity for individuals and organizations alike. Unlike traditional criminal or civil litigation, where the potential stakes are relatively clearly defined (fines, jail time, etc.), the list of what is at stake in a Congressional investigation is far wider, and means that defending against an investigation requires a holistic, multi-faceted view that anticipates of those potential concerns and takes them into account in developing a strategy for investigation defense.
As we head into 2019 and the 116th Congress launches new investigations, or carries forward investigations that are already underway, each of these points is worth bearing in mind in deciding whether to engage counsel to assist with a Congressional investigation or inquiry response.