INSIGHTS

Running Up That Hill (A Deal with Congress)

October 16, 2023

By: Michael K. Atkinson, Aaron C. Cummings, Allison Fleming, James G. Flood, Chris Murphy, Jeff Severson

Introduction

While not new, Congressional investigations have certainly been receiving increased press coverage in recent years, raising questions about their scope and potential risk for organizations and individuals. Congressional investigations have some similarities to other law enforcement and regulatory investigations, but are distinct in many respects. This alert will provide guidance about the unique nature of congressional investigations, and how to respond if you are the target of one.

Q&A

• What types of information can Congress request as part of an investigation?
  Congress has the power to request documents, interviews, and testimony, and these requests can be voluntary or compelled. Congress tends to seek voluntary compliance before it uses a compulsory process, but Congressional committees routinely issue subpoenas for testimony and document production in the course of their investigations.
• Why would I or my organization voluntarily respond to a Congressional request?
  There are clear benefits to responding to Congressional requests voluntarily, and many areas for compromise, effective negotiation, and strategic framing of responses. Resisting or refusing to cooperate with congressional investigations can lead to heightened scrutiny, subpoenas, and broader scopes of investigation. Many Congressional investigations generate significant press attention, so an investigation that is not handled well or that is ignored can do great harm to the brand and reputation of organizations and individuals that find themselves in the crosshairs of Congress. With any response to Congress, it’s important to keep in mind that knowingly providing a false statement to Congress is a crime, regardless of whether you are under oath. Lawyers and government affairs professionals with experience handling Congressional investigation can help clients frame their responses in productive ways, avoid legal liability, and avoid negative press attention.Document Requests
  A party can limit the scope and time frame of the request, negotiate the sequence of its response in a rolling production, and also negotiate deadlines for the response. Congress generally has extremely broad latitude in deciding what information it can make public so these negotiations are critical. It is possible to request and obtain an NDA for confidential/trade secret information voluntarily provided, but in practice this is difficult to obtain, especially without skilled representation.

  Interview Requests
  Parties can also negotiate how they respond to voluntarily interview requests. This includes, but is not limited to, who will testify, the scope of the testimony, and if the testimony remains private. This last point is particularly important for companies concerned about reputational risk where privacy is a top priority.
  Of course, there are also potential downsides for voluntarily appearing or producing documents. Careful analysis and weighing of risks are often necessary when deciding how best to respond, especially if the goal is to minimize public attention to the matter. Experienced practitioners can help clients make the best decision for their companies.

• If we don’t cooperate voluntarily, then what?
  Both Standing Committees and Sub-Committees have authority to issue subpoenas for documents and testimony.  Refusing to comply with such a subpoena risks the party being held in contempt of Congress, which could result in fines and imprisonment if the Department of Justice chooses to prosecute. Additionally, even if a party appears before Congress, 2 U.S.C. § 192 makes it a misdemeanor to refuse to answer questions when a witness has been summoned and is being questioned by either house of Congress.
• What is the process for a Standing Committee or Sub-Committee to issue a subpoena?
  The process is set by the rules of the applicable Standing Committee or Sub-Committee. The rules may require bipartisan approval, Chair approval, or approval by a majority of the members of the committee or sub-committee.
• Why would we voluntarily cooperate with the non-majority side if a subpoena requires bipartisan approval, Chair approval, or a majority of the members of the Standing Committee or Sub-Committee?
  First, the non-majority side can become the majority in a future election cycle. Second, the non-majority side in one house of Congress (e.g., the House of Representatives) could work with the majority in another house of Congress (e.g., the Senate) to try to obtain the same evidence through a compulsory process. Third, and despite multiple viewpoints on Standing Committees and Sub-Committees, some evidentiary requests will garner bi-partisan support (for example, requests related to China and large technology companies).
• If we receive a subpoena for documents and/or testimony, can we contest the subpoena?
  Yes. First, you can argue that the subpoena is outside of the Standing Committee or Sub-Committee’s jurisdiction or scope of the investigation. A Committee or Sub-Committee can issue a subpoena about anything that could affect legislation that it would work on; broad—but not unlimited—authority. Second, a subpoena could be contested if it is outside the scope of the committee’s own and Congress’ standing rules for investigations. Third, one could also argue the Standing Committee or Sub-Committee did not follow proper procedure – e.g., it did not have sufficient votes, notice to Members on voting, or a quorum to issue the subpoena.  However, chances of success with any of these approaches would be low.
• If we can’t contest the subpoena, is there anything else we can do?
  Yes, you should consider whether there are any privileges or defenses that apply. These can include:
  • Executive Privilege appliesThe Executive is imbued with the power of withholding documents from the other two branches of Government. However, recent cases have shown that this privilege is difficult to successfully invoke. On August 30, 2023, a federal judge ruled that former senior advisor to President Trump, Peter Navarro, failed to prove that Mr. Trump invoked executive privilege to prevent Mr. Navarro from testifying in front of the January 6th Select Committee. There was no clear evidence that Mr. Trump instructed Mr. Navarro not to testify. Steve Bannon also unsuccessfully tried to invoke executive privilege, and the oral argument for his appeal is set before the D.C. Circuit on November 9, 2023.
  • Fifth Amendment Privilege against Self-Incrimination appliesIn 2014, former IRS official Lois Lerner was held in contempt of Congress for refusing to appear pursuant to a subpoena issued by a House Committee, asserting her 5th Amendment right against self-incrimination. Despite a vote to hold Ms. Lerner in contempt, the Department of Justice declined to seek criminal contempt charges against her, agreeing that her 5th Amendment rights remained unwaived. However, this right can be waived if a party makes certain statements about the matter before invoking.
  • Fifth Amendment Act of Production Immunity appliesAct of Production Immunity allows individuals and sole proprietorships to avoid production of documents when the very fact of the production would be incriminating. This avoids “fishing expeditions” that can result from broad and speculative subpoenas. However, this immunity does not apply to corporations.
  • Attorney-Client Privilege does not applyAlthough some committees follow traditional rules about privilege, historically Congress has taken the approach that its power to investigate is not bound by common law rules of privilege. So unlike in a court of law, the attorney-client privilege and work product doctrine do not apply in congressional investigations. However, committees can exercise discretion to recognize a claim of privilege on a case-by-case basis.
• What if we simply ignore the subpoena
  Like in the Lois Lerner case discussed above, Congress can refer cases to DOJ to prosecute for contempt of Congress. DOJ does not keep statistics, but the Department tends to pursue few of those referrals. In part, this is due to the often-politicized nature of congressional investigations. Nor does DOJ provide published guidance about what criteria it uses to decide which cases to pursue.Note that there is a distinction between appearing for congressional proceeding and invoking a privilege or defense, and failing to appear (as was the case for Mr. Navarro and Mr. Bannon). DOJ is more likely to prosecute contempt in the context of failing to appear because it is easier to obtain a conviction, and the prosecution arguably appears less partisan.
• That’s all helpful enough, but we need more guidance than that. What should we do?
  Call Crowell & Moring. We have leading practitioners with deep experience guiding individuals and organizations through congressional investigations.