As many of our readers may know, Congressional oversight and investigations do not have to conform to the same rules as law enforcement investigations. By allowing the United States House of Representatives and United States Senate essentially unfettered and unlimited inquiry ability, some private enterprises may find that they suffer unexpected damage from a Congressional investigation.
At the end of March 2019, the Washington Legal Foundation hosted a webinar entitled, “When Congress Comes Calling: Unique Rights and Wrongs for Oversight and Investigation Targets” focused on the unique challenges on both the written and unwritten rules for navigating Congressional investigations, as well as other factors that are important to survival of such an investigation. The panel was moderated by Glenn Lammi of the Washington Legal Foundation and featured The Honorable Tom Davis, attorney at Holland & Knight and former Chairman of the House Committee on Oversight and Government Reform, and William E. Moschella, an attorney with Brownstein Hyatt Farber Schreck LLP, and a former Chief Legislative Counsel and Parliamentarian for the House Committee on the Judiciary, as panelists.
The Honorable Tom Davis
The Honorable Tom Davis, former Chairman of the House Committee on Oversight and Government reform, gave a broad overview of Congressional investigations and inquiries from his unique perspective. He first noted that every Committee chairman has their own agenda and oftentimes, politics and party lines do come into play. For example, we are now seeing the House Democrats ramp up investigations and inquiries into President Donald Trump that the Republicans would not consider doing when they were the majority party.
Davis also noted that while the Oversight Committee does not have the jurisdiction to write laws in response to its investigations, it does have jurisdiction to shine a spotlight on certain issues and can really control the hot topics discussed in Washington and around the country.
Receiving the Request
Often, the first step in a Congressional investigation is a written request from the committee for certain documents. Davis stated that this is a request and you are not yet legally bound to comply. However, failure to comply with the request will typically result in a subpoena being issued, which you are required to comply with at the risk of being found in contempt of Congress. He recommended that when you receive a request, contact the signatories of the request and try to get specifics as far as what they are truly looking for. To that end, he noted that the requests are often bipartisan, but if it is not, you may be able to look to the minority party (the one who did not issue the request/subpoena) and ask for their help in narrowing the scope of the request. Either way, you should always try to reach an agreement about which documents to submit to the Committee.
Brand Damage
Davis then went on to discuss the importance of protecting your clients from brand damage. The Committee chairman cannot ensure what their members will say or do, and cannot even guarantee certain information will be kept private or confidential. It is for these reasons that you generally want to keep your clients away from public hearings relating to investigations, as they can become spectacles. However, if your client is called for a hearing, you will want your client to discuss with staff and members ahead of time, discuss fears and concerns, and see if they can provide any insight as to what you will be asked so you can appropriately prepare for the hearing.
Other Tips
Mr. Davis also noted that Congress has the authority to go beyond just testimony and documents, for example, in the Terry Schiavo hearings, his Committee subpoenaed the feeding tubes. You and your clients should be familiar with all of the documents the committee has before testifying in public or behind closed doors – you do not want to be surprised while under oath.
He also mentioned to know who your allies are and to make use of them, as the minority can sometimes use the five-minute rule and the guarantee of time to ask questions to shift the emphasis of the hearing or to correct misunderstandings that are perceived from your testimony. He also noted that minority members may be able to include helpful information for you in the opening statement of the ranking member, or even to have other committee members submit a statement in your favor for inclusion in the record.
Lastly, he mentioned the importance of a media strategy. If it seems like it may be a hostile hearing, sometimes one side of the political aisle will release an article to the newspapers the day before the hearing that winds up controlling the narrative of the hearing. An effective media strategy may be able to mitigate damages from that type of move.
William Moschella
Mr. Moschella hit some of the same points as Mr. Davis, but he also mentioned some potential defenses if you do happen to receive a subpoena. He noted that defenses may include: the investigation is not tied to a legislative purpose, as required by the Constitution; the Committee does not have jurisdiction over the matter being investigated; due process concerns (i.e., not knowing the scope of the inquiry, etc.); 5th Amendment privileges; and 1st Amendment privileges, just to name a few.
Brand/Reputation Damage
Moschella also discussed the risk of damage to your brand and/or reputation during an ongoing Congressional inquiry. He noted that one of the biggest challenges are the parallel and collateral investigations that are likely to ensue. He referenced the current investigation into Boeing, where there are not just Congressional investigations, but also IG investigations, DOJ investigations, FAA investigations, and possibly even state or foreign government investigations. He noted the importance of understanding the risk of all the investigations and balancing the other investigations with the high-profile congressional investigation is of paramount importance.
Preparation
He echoed Mr. Davis’ sentiment that preparation is of utmost importance – don’t go into the hearing or produce documents without being prepared. If you think for a moment you can “wing it,” just remember, Congress can make criminal referrals! Human memories are never perfect. Your client may testify that certain emails, texts, or communications did not exist (in good faith), but later they turn up and then Congress is wondering why that information was left out of the testimony? It is easier to prepare completely than to risk such a situation, which may lead to a criminal referral.
How to Keep Private Information Private
Muschella mentioned the oversight currently going on in Congress focused on drug pricing. He noted that some of the requests may include requests for sensitive pricing information requests, and if you do not want that information publicly disclosed, what can you do? Unfortunately, there is no solid way to guarantee that, as we are seeing more and more Committee members taking it upon themselves to release that private information into the public arena, even at the risk of sanctions.
One possible way to get around this is to convince the committee that your cooperation is contingent on them passing a resolution that states any material produced by your client is protected. While this is not a guarantee, it does make it so that failure of committee members to abide by the resolution could result in sanctions against that committee member.
Role of the Minority
Muschella discussed the role of the minority, saying when the oversight or investigations becomes more politically charged, they can serve as a helpful line of defense. He also noted that the minority is guaranteed a day of hearings and that the Committee chairman cannot unilaterally adjourn the hearing. He also noted that the minority can raise pertinency challenges, which could lead to evidence being excluded if the committee deems the information not pertinent.
Question and Answer Session
The Q&A session started out by asking if preparation for a specific hearing or document production depends on the motivation behind the hearing. Both speakers agreed that preparation should differ based on the motivation of the hearing. If it is a testimony on a piece of legislation and your client is testifying on their expertise, that can be a positive hearing for your client and its company. Even still, it is important to be fully prepared as sometimes questions can become antagonistic as the hearing goes on.
Another question asked about instances where a member of Congress quotes directly from documents that contradict the testimony he/she just provided and asked about how those situations are best handled. Again, both panelists spoke to the importance of preparation. Mr. Davis mentioned that you need to go through documents one page at a time instead of skimming them all and assuming you know what is in them. While Committees will often give you a chance in the moment to explain the discrepancy, by that time, the damage is often already done. You and your client will also need to understand any and all parallel investigations that are ongoing.
When asked what kind of role the general counsel’s office plays in investigations, the importance of hiring outside counsel up front was discussed. It was mentioned that Congressional investigations and inquiries are typically outside the expertise of anyone within the corporation and in order to protect the corporation, it is worth spending money up front to hire someone with the appropriate expertise to help handle the situation.
Industry-wide investigations were also discussed, especially in the context of the pharmaceutical industry and the drug pricing hearings that are ongoing. Mr. Moschella noted that while you can enter into an agreement with other industry members, common interest agreements or JDAs are not generally enforceable in the Congressional context. Therefore, as Mr. Davis suggests, when there is a broad brush across an entire industry, you do not want your company to be one of the ones testifying – while you can have a general industry-wide strategy, the strategy for your individual company should always take priority.
At the close, both participants gave additional tips that did not come up before, including the importance of communicating with the committee. Do not play games with the committee or staff, and build a rapport quickly, as they can help you if you are facing a delay in production or other issue that prevents you from reaching deadlines previously set. Mr. Davis also mentioned that when testifying, it is important to know the order of the hearing, as that can shed light on where the priority of the committee is, and give you additional insight into what to expect.