Featured Expert Contributor, White Collar Crime and Corporate Compliance
Gregory A. Brower is a Shareholder with Brownstein Hyatt Farber Schreck, LLP. He also serves on WLF’s Legal Policy Advisory Board and is a former U.S. Attorney and FBI senior executive. The firm recently appointed Greg as Practice Chair of Congressional Oversight and Investigations. William E. Moschella is a shareholder with Brownstein Hyatt Farber Schreck, LLP where he serves as co-chair of the Government Relations Department. David D. Ransom is a Shareholder with the firm in its Washington, D.C. office.
* * *
On September 25, as Congress worked to avert a government shutdown, the United States Senate quietly adopted a resolution on the failure of Steward Health Care’s former Chief Executive Officer, Dr. Ralph de la Torre, to obey a subpoena commanding that he appear before the Senate’s Committee on Health, Education, Labor, and Pensions (“HELP”). The resolution (S. Res. 837) refers the matter to the U.S. Department of Justice for criminal prosecution. This marks the first time since 1971 that the Senate has voted to hold an individual in criminal contempt and provides an example of the power that Congress can wield in the context of oversight investigations.
Steward Health Care is a large, privately held, for-profit health care system that, at its height, was the largest private hospital system in the U.S., with more than 100 hospitals and other facilities and approximately 40,000 employees. In 2020, a group of physicians, led by de la Torre, took a 90% ownership interest in the company, which was followed, almost immediately, by a series of financial challenges. The company filed for Chapter 11 bankruptcy protection in May 2024.
In July 2024, the Senate’s HELP committee launched a bipartisan oversight investigation into allegations of financial mismanagement of Steward Health Care and voted to subpoena de la Torre to testify at a hearing on September 12. Following some communications between de la Torre’s counsel and counsel for the Committee wherein de la Torre’s counsel apparently made what he believed were valid objections to the subpoena, the Committee clearly disagreed, held the hearing as scheduled, and de la Torre did not appear.
Subsequently, in response to the Committee’s announcement that it intended to commence contempt proceedings in response to de la Torre’s failure to obey the subpoena, counsel for de la Torre wrote a letter to Committee Chair Bernie Sanders in which he alleged that the hearing was “seemingly designed as a vehicle to violate Dr. de la Torre’s constitutional rights, including his Fifth Amendment rights….” Counsel’s letter further suggested that the Committee was seeking to “frame Dr. de la Torre as a criminal scapegoat for the systemic failures in Massachusetts’ health care system.” The Committee responded with a letter of its own, stating that de la Torre “had a legal duty to attend the hearing … as commanded by the duly authorized Committee testimonial subpoena issued to him on July 25, 2024, for which you accepted service on his behalf and indicated his availability.” In addition, the Committee’s letter explained that had de la Torre appeared to testify, “he would have had a full opportunity to assert his Fifth Amendment right against self-incrimination in response to questions posed to him by members of the Committee that implicated that right.”
As noted above, this latest contempt resolution is an example of Congress’s power to punish a contemnor with failing to comply with a duly issued subpoena for testimony and/or documents. Under 2 U.S.C. § 192, a duly subpoenaed witness commits a misdemeanor criminal offense if he or she willfully fails to comply with a congressional subpoena. The law’s purpose is to support Congress’s investigative and oversight functions by punishing a witness for failure to comply with a lawful subpoena and to deter future noncompliance with future congressional investigations
The process of a criminal contempt proceeding begins with the chamber that issued the subpoena adopting a contempt resolution or citation and making a referral to the U.S. Department of Justice for prosecution. While § 194 provides that the U.S. Attorney “shall” present the case to a grand jury, for separation-of-powers reasons, DOJ’s long-held position is that it has discretion over whether to present the matter to the grand jury as it would with any other type of criminal referral. If the U.S Attorney does decide to prosecute the matter, the evidence is presented to a grand jury and, if an indictment is returned, a trial or guilty plea follows. Upon a conviction, the punishment can include a fine of up to $100,000 and imprisonment for a term of between one and twelve months.
While the de la Torre contempt citation is the first adopted by the Senate in more than fifty years, the House has adopted several over just the past five years, all involving current or former executive branch officials—two of which resulted in indictments and convictions.
The various criminal referrals, both House and Senate, from the past several years demonstrate the very real possibility that ignoring a congressional subpoena can, and likely will, lead to serious consequences. In most cases, a subpoena is a congressional committee’s last resort when all other, less formal, efforts at obtaining information have been unsuccessful. However, a recipient of a congressional request, especially when that request is from a committee chair with subpoena power or the investigation has bipartisan support, should understand that if the request is not taken seriously, a subpoena could follow. And a subpoena, if not obeyed, could lead to contempt proceedings. The better approach is almost always to engage in a sincere attempt at dialogue and accommodation with the goal being a production of information that satisfies the committee’s legitimate oversight objective.