Washington, D.C., is bracing for a new round of congressional investigations as a result of the November 2018 election changing control of the House of Representatives from “Red” to “Blue.” There may be significant consequences for companies and individuals caught up in a new, far-reaching round of House investigations. There also will be investigations in the Senate in the new Congress, although with Republicans maintaining Senate control, those will be fewer. Nonetheless, the consequences may be both legal and reputational, requiring experienced assistance in heading off, or responding to, an investigation inquiry.
Various lists of likely investigation targets have been published recently. Here is a link to such a list:
As House Democrats prepare to assume the committee gavels and add experienced professional investigators to their staffs, each House committee chair is reviewing the industries, companies, and individuals under its jurisdiction to determine who will be contacted for inquiry.
Unlike investigations run by the Department of Justice or the Securities and Exchange Commission, congressional investigations are controlled directly by the majority party. There is virtually no collaboration with the minority party, especially in the House of Representatives. Congressional committees also are prone to conduct their inquiries in public and to leverage press coverage and social media exposure to their advantage.
If a congressional committee comes knocking on your door for information, you should be prepared to respond appropriately to protect you and your company’s interests. The following provides some necessary information in dealing with requests and demands from congressional investigators.
Understand the rules of the committee issuing the request. Not all committees have the same investigatory rules. For example, the chair of one committee may issue subpoenas without consent from the Minority, while another committee must have consent of the Minority to do so. If you understand the rules of the particular committee, you will know how far you may negotiate an informal request before it may become a more formal subpoena. Senate committee rules tend to be more bipartisan, but that also varies from committee to committee.
Recognize that Congress has powers independent of the Judiciary. Unlike a grand jury investigation, a congressional investigation is not run with the oversight of an independent judge. You will not easily be able to go to a court to fight over what you perceive to be an unjust or over-reaching committee request.
Be aware that the normal rules do not apply. In many instances, Congress does not recognize the attorney-client privilege or the attorney work product doctrine. That does not mean you automatically have to produce materials protected by those doctrines, but it does mean that you will likely have to negotiate with the committee staff and its Members to protect such materials. Moreover, Congress does not recognize protections normally afforded litigants to guard against disclosure of trade secrets and sensitive business information. Once such information is produced to a committee, it can be released publically for the purposes of the committee absent some clear agreement to the contrary. And even with a confidentiality agreement in place, congressional staff may choose to “leak” information to the media.
Be prepared to negotiate. Most investigations start with voluntary information requests, often from committee staff members. You should be prepared to negotiate the scope of those requests along with the rules of any further engagement. For example, you may try to negotiate whether to have off-the-record interviews, informal interviews, recorded interviews, or public appearances at a hearing. Which is preferable to you will depend on the exact role you and your company play in the matter being investigated and your broader strategy in dealing with the matter. Given that courts are reluctant to limit the investigatory power of Congress, negotiation is essential to obtaining the most favorable outcome. Therefore, it can be critical that those representing you before Congress have sound professional relationships with key Members of Congress and their staffs
Recognize that both Majority and Minority Parties have an interest in your participation in the investigation. The investigation will be political. Although both the Minority and Majority Members have an interest in your information or testimony, those interests often are not aligned. You therefore should keep open communications with Members and staffs on both sides of the aisle to ensure the best outcome for you and your company.
Do not ignore the publicity aspect of the investigation. There will almost always be some publicity associated with every congressional investigation; depending on the public’s interest in the issue or the profile of those called to testify, CSPAN, CNN, FOX News, or MSNBC may be covering the hearing for some or all of its duration. And then there’s social media. Therefore, it is essential to plan for your response to media and public inquiries about your participation in the investigation. Even when you are granted assurances that your cooperation will not be disclosed publicly, you must be prepared for potential leaks to the press. Therefore, ensure that you have political and public relations strategies prepared.
Given the unique aspects of congressional investigations, it is necessary to retain experienced advisors to assist you in responding. BCLP’s Congressional Investigations Response Team is uniquely positioned to assist companies and individuals to navigate the various requests and potential publicity that surround congressional investigations. Composed of former senior Hill staffers, experienced white collar defense lawyers, civil litigators and public policy attorneys, BCLP can assist you in responding to informal requests and formal subpoenas issued by congressional committees.