By Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, D.C.; William E. Moschella, a Shareholder in the firm’s Washington, D.C. office where he co-chairs the firm’s government relations practice, and Alice Lugo, Senior Counsel in the firm’s Washington, D.C. office.

Mr. Brower is a member of WLF’s Legal Policy Advisory Board and has extensive experience in the executive and legislative branches of the federal government, most recently as the FBI’s Assistant Director for the Office of Congressional Affairs. Mr. Moschella was the Assistant Attorney General for the Office of Legislative Affairs at the Justice Department and served as Chief Legislative Counsel to the House Judiciary Committee. Ms. Lugo served as the Assistant Secretary for Legislative Affairs at the Department of Homeland Security and spent a decade on Capitol Hill as Counsel and Chief Counsel for senior Members in the U.S. Senate and U.S. House of Representatives.

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With Congress seemingly plagued by partisan gridlock, both the U.S. Senate and the U.S. House of Representatives continue to pursue robust, some might say aggressive, oversight agendas. As always, a major focus has been the executive branch which, in any administration, will present a seemingly never-ending target list for oversight. But beyond Congress’s clear constitutional duty to oversee the executive branch operations it funds, the House and the Senate have increasingly focused on overseeing the activities of private actors as well, be they recipients of federal funds, members of federally regulated industries, or others who simply affect interstate commerce.

In theory, this oversight work is critical to Congress’s valid legislative interest in conducting inquiries into the administration of existing laws and the potential need for new ones, something Congress has been doing for almost its entire existence. However, much of this “oversight” is increasingly motivated by political considerations in anticipation of the next election cycle and potential opportunities to score political points for one side or the other. But whatever the actual motivation, a congressional oversight investigation is something to be taken seriously by those on the receiving end of a congressional request. Even for savvy in-house counsel and experienced litigators, congressional investigations can be confusing, frustrating, and potentially disastrous. Effective representation of a congressional investigation target requires a combination of experience and expertise across a diverse range of disciplines, including litigation, government relations, and public affairs. The most adept practitioners in this area must be able to combine all the above to effectively represent a client that has drawn the interest of Congress.

This Legal Backgrounder provides an overview of some of the unique aspects and nuances of congressional oversight considering recent developments in this area and should help the reader understand the basics of successfully navigating a congressional investigation in this new era of more robust and partisan oversight.

Congress’s Power to Investigate

Most fundamentally, potential targets of oversight investigations must understand that a congressional committee’s power to investigate, while not unlimited, is as broad as Congress’s authority to enact laws. Indeed, the U.S. Supreme Court long ago observed that “[t]he scope of [Congress’s] power of inquiry . . . is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”¹ Thus, as long as a congressional committee can articulate a “valid legislative purpose” behind its investigative effort, it has the constitutional power to investigate almost anything, and a court will likely defer to Congress when its authority is challenged.² In fact, courts have long construed “valid legislative purpose” very broadly, holding that congressional inquiries can reach the seemingly private affairs of individuals and organizations as long as Congress can demonstrate a legitimate interest in doing so.³ Targets of congressional investigations must also understand that information obtained in the course of a congressional investigation is generally subject to public disclosure at the discretion of Congress. Indeed, if publicly disclosing such information is likely to serve some political purpose, it almost certainly will be disclosed, and seasoned practitioners almost always proceed under the assumption that anything turned over to a congressional committee will make it to the front page of the Washington Post. In this regard, the usual mechanisms for maintaining the confidentiality of certain information, such as the protective order, which are so common in civil and even criminal litigation, are not available in the context of a congressional investigation. 

Moreover, unlike the initiation of a civil lawsuit or a criminal investigation, which must be predicated on some rule or policy-based threshold of evidence, a congressional investigation need not meet any such objective standard. In fact, the decision whether to investigate is entirely within the discretion of Congress and, specifically, the relevant committee chair. This reality should serve as a reminder that everything Congress does is political, including decisions on what, who, when, and how to investigate. Understanding this fundamental fact of Washington life is critical to understanding how to effectively handle an oversight investigation.

The Initiation of a Congressional Oversight Investigation

Inspiration for congressional investigations may come from many sources, including the media, constituents, whistleblowers, outside groups, and even business rivals of the investigation target. And, increasingly, as noted above, political motivations are often a primary impetus behind an oversight investigation. Some begin with a formal letter from a committee chair requesting the production of certain documents or answers to written questions. Others start more informally with a phone call from committee staff inquiring about a particular topic. Still others may be announced by way of a news conference, press release, comment to a reporter, or even a social media post. No matter what form the initial notice may take, once a target becomes aware of such investigative interest, the target should immediately consider retaining experienced counsel to assist in crafting the right response.

Responding to a Request from a Congressional Committee

To some, an oversight investigation may look and feel a lot like litigation, but they share little in common with a lawsuit’s procedural rigors or clear endgame for the initiator. As such, the way they are conducted can vary greatly and, like most everything in Washington, is almost always subject to negotiation.

One preliminary question to consider is whether the requester actually has the power to do anything more than simply make a request. When it comes to oversight authority, not all members are created equal. Both the Senate and the House have adopted rules to clarify which of their respective committees have authority to conduct oversight. In the Senate, the Permanent Subcommittee on Investigations has broad authority to conduct oversight and each standing committee is authorized by rule to conduct oversight over matters within the legislative jurisdiction of the committee. In the House, the Committee on Oversight and Accountability has broad authority to conduct oversight in a wide range of areas and each standing committee is authorized to conduct oversight related to their specific areas of jurisdiction. In addition, each chamber may adopt rules to create special or “select” committees with unique oversight jurisdiction, such as the House Select Subcommittee on the Weaponization of the Federal Government and the House Select Committee on the Chinese Communist Party. So while any member can send a letter requesting information about any topic, it is important to distinguish between committee requests, particularly those that have potential subpoena power behind them, and those from rank-and-file members that cannot necessarily be enforced. However, sometimes even the more aspirational requests may merit a response if it is in the recipient’s best interest to do so. That is a judgment call that experienced counsel can help make on a case-by-case basis.

After determining whether a response is necessary or desirable, counsel should discover the reason for the request, what specific information the requester really wants, and what political objective underlies the request. Ascertaining these facts will inform how best to formulate a strategy for responding to the request. Counsel for targets should research media reports and news releases, and simply ask staff what they are looking for and why. Rarely is the true motivation behind an oversight request difficult to discern. Only upon developing an understanding of the political or policy goal behind the request and how a target of the request fits into that bigger picture can counsel effectively navigate the rest of the  process.

The Rules that Apply to Congressional Oversight Investigations

While congressional oversight investigations do resemble litigation in some respects, one major difference is that there is no body of rules, procedural or evidentiary, that generally applies to how investigations are conducted in this context. Certain rules do broadly define the contours of a congressional investigation.  Of course, the U.S. Constitution and the rules for each respective chamber provide guidance for how oversight investigations are to be conducted. Additionally, counsel should familiarize themselves with the relevant committee’s own rules. However, while these rules may help to outline the general parameters of congressional investigations, they are not nearly as detailed as some of the evidentiary and procedural rules that lawyers are accustomed to encountering in litigation. For example, under the House Rules, each committee can judge whether sworn statements and testimony are “pertinent” to a congressional hearing, and irrelevant information can be struck from the record.⁴ In practice, though, members rarely invoke this rule.

Furthermore, few safeguards exist in the congressional-investigation process for the confidential production of sensitive information, such as trade secrets. Even if counsel can successfully negotiate a confidentiality agreement for production of business records, members and staff with access could still disclose information to the public without fear that doing so would violate a court order. Another option which can reduce the likelihood of a leak is to negotiate the committee’s reception of information “in camera,” in which the recipient of the request shares relevant information in a closed-door meeting with a small number of staff and/or members who review or hear certain information without taking a copy or otherwise sharing the information outside of that room. This approach allows a committee to obtain the information it needs while minimizing the chance of a leak.

Enforcing Compliance

Unlike an information request from an individual member of Congress, a request from a committee chair may ultimately be compelled by compulsory process.  While perhaps tempting in some cases, simply ignoring such a committee request is generally not advisable and can result in a subpoena and the complications that accompany it. Instead, counsel can and should work with committee staff to reach an agreement on the scope and timing for a response to a request to accommodate the committee’s legitimate oversight interests and avoid a subpoena. Whether the request is for documents or witness testimony, the exact contours are usually negotiable, and counsel should be confident in cooperatively attempting to negotiate the details of a response that is satisfactory to both sides. Once a subpoena is issued, however, the ability to negotiate may be more limited.

If necessary, authorized Senate and House committees will issue subpoenas to compel the production of documents or witnesses. The Supreme Court has recognized Congress’ power to hold a witness in contempt as an inherent part of its legislative authority.⁵ There are three types of contempt proceedings. The first is known as “inherent contempt” whereby the Senate or House can order its sergeant at arms to arrest and jail a witness until they agree to comply with the investigative demand. Neither body has done this in nearly a century and an alternative known as “statutory contempt” has developed over the years. Statutory contempt is based on an 1857 law that defines a failure to obey a properly authorized subpoena as a misdemeanor, punishable by a fine and imprisonment.⁶ The statute provides that a committee may report alleged noncompliance by a witness to the full Senate or House for a vote on whether to refer the matter to the U.S. Department of Justice (“DOJ”) for prosecution. It is then up to DOJ, at its sole discretion, to prosecute the matter.⁷ The House has exercised this option recently, making several referrals that have resulted in at least two successful DOJ prosecutions. The third type of contempt power allows for the enforcement of a subpoena through civil litigation in the U.S. District Court for the District of Columbia.⁸ Upon ruling in favor of the government, the court can hold the witness in contempt of court and impose sanctions for noncompliance.

Because of the complicated, costly, and potentially onerous ramifications associated with contempt proceedings, they are rare. As with civil litigation, the parties to a congressional request, even when initially at odds, are usually able to negotiate a compromise that satisfies the requesting committee’s legitimate oversight needs, while also accommodating the valid interests of the recipient of the demand.

There are some defenses to congressional subpoenas, and invoking those should be done after weighing both the legal and political ramifications of asserting them.  For example, because Congress cannot investigate where they cannot legislate, congressional committees may not investigate conduct solely protected by the Constitution, like the First Amendment. Furthermore, congressional committees may not exceed the jurisdiction conferred on them by House or Senate Rules.  Furthermore, questions about common law privileges must be reviewed and studied carefully.  Most common-law or statutory privileges that govern most other types of proceedings generally may not apply to a congressional investigation. Congress has historically recognized only constitutional privileges such as the Fifth Amendment privilege against self-incrimination, and it does not necessarily recognize common-law privileges, including the attorney-client privilege.⁹ Thus, an oversight target’s ability to withhold information or documents based on the assertion of a privilege is unclear and thus very much subject to negotiation. Importantly, notwithstanding this ambiguity, it is our experience that congressional committees generally respect common law privileges.

Oversight Investigations Involving the Executive Branch or the President

While the primary focus of this paper is oversight requests aimed at private parties, it is worth noting that the most recent litigation concerning Congress’s oversight power has been in the context of investigations involving the executive branch and the president himself. Courts are likely to view the President in a different posture than private persons or entities pursuing a motion to quash a congressional subpoena. Despite the differences between the two types of oversight, some of these recent court decisions are potentially instructive in the private party context. For example, in the Mazars case the Supreme Court identified four factors courts should contemplate when considering a motion to quash a congressional subpoena:

1.  Whether Congress has a sufficient legislative interest in obtaining the requested materials;
2.  Whether the subpoena is more overly broad than is reasonably necessary to support Congress’s legitimate legislative purpose;
3.  Whether Congress has provided sufficient detail of its valid legislative purpose; and
4.  Whether the valid legislative purpose outweighs the burden attendant to complying with the subpoena.¹⁰

Again, while the congressional subpoena at issue in the Mazars case was aimed at the President’s personal information, the above four factors provide a logical roadmap that is likely to be followed by a court considering a congressional subpoena to a private party. 

Another important issue or defense that can arise in the context of a congressional subpoena to the executive branch is executive privilege. While often raised as an objection to producing certain categories of documents, Congress unsurprisingly takes a very narrow view, limiting the application of the privilege to only certain types of presidential, national security, and diplomatic records. As noted above, the applicability of common law privileges to the congressional oversight context, whether the witness is an executive branch official or a private party, is not clear and is subject to negotiation with the requester. 

Responding to Different Types of Requests

Document Requests

Because congressional committee requests for documents often are, by design, incredibly overbroad, fulsome compliance can be extremely challenging and costly. Committee staff, while often beginning with a “shotgun” approach, are nevertheless typically appreciative of counsel’s ability to help narrow the request to more accurately target the documents and witnesses the committee needs. Committee staff no more want to review thousands of pages of irrelevant documents than the recipient of a request wants to search for and produce them.  Similarly, committee staff will also typically be sensitive to the need for redactions of certain information not necessary to their inquiry, such as personally identifiable information and other types of confidential or proprietary business information. All these issues can and should be raised and negotiated with committee staff to protect reasonable client concerns.

Interviews and Depositions

Committee staff commonly request interviews of key witnesses parallel to the document request/production process. Such interviews, typically informal, private, and not transcribed, can both be very useful for the committee to quickly get relevant information and be an efficient way for the witness to provide information without the burden of a more formal public hearing. These private interviews, however, are almost never “off the record” and whatever is said can and likely will be made public if doing so suits the committee’s interests. Like everything else, the contours and ground rules for such interviews are negotiable.

A committee may also seek to conduct a transcribed interview of a witness, and in some cases, a deposition of a witness may be demanded. In recent years, transcribed interviews, or “TI’s,” have become the rule, and not the exception, for several committees. A congressional deposition will be transcribed and conducted with the witness under oath and may include staff and/or members of the committee asking questions of the witness. Increasingly, committees may also request that an interview or deposition be audio and/or video recorded. Whether to agree to a recording is an important decision for counsel representing a witness as it is likely that the recording, even with a non-disclosure agreement in place, could become public in whole or in part. Therefore, when offering to produce a witness for an interview or a deposition, counsel should carefully consider whether to draw the line at a recording. Committees will typically be satisfied with an opportunity to ask questions and obtain transcribed answers under oath without a recording. And when a committee insists on a recording, especially a video recording, that likely signals an intention to utilize that testimony publicly. 

Most importantly, a witness must understand that any statement made to a congressional committee is subject to an array of federal statutes providing for criminal penalties, including perjury,¹¹ obstruction of justice,¹² and false statements.¹³ Counsel cannot be too careful in preparing witnesses with this reality in mind.

Hearings

With the advent of C-SPAN and the proliferation of cable news networks, live streaming, and social media, the congressional hearing is the predominant form of political theater in present-day Washington. A hearing on a newsworthy oversight matter, especially if it features a high-profile witness such as a cabinet official, a corporate CEO, or a celebrity, has the potential to become a made-for-TV spectacle with a standing-room-only audience and a press area filled to capacity. This setting can be daunting for even the most sophisticated witness and thorough preparation is the key to success. Counsel should explain every aspect of how the hearing will unfold, ensuring that the witness is both knowledgeable about the subject matter of the hearing and as familiar with the process as possible. This should include rehearsing the witness’s testimony, practicing responses to likely questions, both friendly and adversarial, and just generally getting comfortable with the unique aspects of congressional hearings. 

The hearing will typically begin with the chair’s opening statements, followed by a statement by the ranking member who is the senior member of the minority. At the discretion of the chair, other committee members will then make their own brief opening statements, followed by the witness(es) being sworn and afforded the opportunity to make an opening statement of their own. This statement is generally limited to five minutes. A longer written “statement for the record” may also be submitted for inclusion in the hearing record.

Upon the conclusion of the witnesses’ opening statement, the committee members, usually led by the chair and ranking member, will begin five-minute rounds of questions, with the majority and minority members taking turns. Occasionally, committee staff will conduct the questioning of witnesses at a hearing. The best witnesses are the ones that treat each member and each question with respect. Any serious oversight hearing will include tough, even unfair, questions by committee members, but it is essential for the witness to maintain a demeanor that reflects an attitude of respect for the questioner and the process. While there may be occasions when a witness should, even must, firmly push back on an unfair or inaccurately premised question, this should be done in a calm, professional way. And witnesses should remember that because each questioner usually has only five minutes to ask questions, and because a typical committee member will spend at least a portion of his or her time making a statement before asking a question, there is generally not much opportunity for follow-up questions. Therefore, a witness, who can deftly deflect a difficult question and then use some time making the statement he or she wants on the record, can effectively win the battle.  

After the Hearing

While the hearing typically marks the end of the investigative process for the witness, committee members may, and often do, submit additional written questions for the record, or “QFRs,” to be answered by the witness. QFRs provide an opportunity for members to seek clarification of an answer provided during the hearing, to request additional information, or to address new topics that were raised during the hearing. The witness will be given several days within which to provide written responses to such questions. Of course, counsel can and should manage this process and ensure that the answers are not only accurate and complete, but also offer additional information or perspective that may not have been adduced during the hearing. The QFR process can be just as useful to the witness as to the committee and can provide a good opportunity to provide more thoughtful and complete explanations of the issues raised during the hearing. The timing and other details of this process are, like everything else in this context, subject to negotiation with committee staff.

In addition, counsel for a witness should scrutinize the witness’s testimony, both in real time during the hearing and by reviewing the transcript of the hearing for any misstatements of fact or other material errors. It is always possible to submit corrections for the record when necessary. This is critical because, as noted above, making a false statement to a congressional committee can be a federal crime. 

Conclusion

The increasingly partisan reality in Congress poses new and unique challenges for potential oversight investigation targets. Political maneuvering ahead of each increasingly long election cycle has led to an increase in oversight investigations seeking to score political points. This reality will continue to place many businesses and their executives on the opposite end of sometimes very onerous committee oversight requests. It is critical for such targets of congressional oversight activity to understand both the procedural rules—formal and informal—and the political dynamics at play. Indeed, in this context, unlike litigation, the importance of the political reality underlying the oversight effort will generally trump any substance in terms of determining the scope, direction, and duration of the investigation. Any target of an oversight investigation must take the matter seriously and, with the assistance of experienced counsel, utilize a strategic approach to effectively navigate the process. 

Notes

1. Eastland v. United Serviceman’s Fund, 421 U.S. 491, 504 n.15 (1975); see also Watkins v. United States, 354 U.S. 178, 187 (1957)(“The power of Congress to conduct investigations is inherent in the legislative process.”).
2. See Kilbourn v. Thompson, 103 U.S. 168, 204 (1880).
3. See Watkins v. United States, 354 U.S. 178, 187 (1957).
4. Clerk of the H.R., 118^th Cong., Rules of the H.R., Rule XI(2)(k)(8) (2023).
5. See, e.g., Journey v. MacCracken, 294 U.S. 125 (1935).
6. 2 U.S.C. § 194.
7. See United States v. Nixon, 418 U.S. 683, 693 (1974).
8. See 2 U.S.C. § 288. Although this statute references the Senate only, the D.C. Circuit recently held that the House had standing to do the same; see also Comm. on Judiciary of United States House of Representatives v. McGahn, 968 F.3d 755 (D.C. Cir. 2020).
9. Interestingly, the Supreme Court recently opined that the attorney-client privilege is applicable to congressional investigations. See Trump v. Mazars, 140 S. Ct. 2019, 2032 (2020) (“Finally, recipients of legislative subpoenas retain their constitutional rights throughout the course of an investigation. And recipients have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege.” (citations omitted)).
10. Mazars, 140 S. Ct. at 2031.
11. 18 U.S.C. § 1510.
12. 18 U.S.C. § 1505.
13. 18 U.S.C. § 1001.