For businesses that receive Congressional subpoenas or document requests, it’s important to remember that there are significant differences between such requests and traditional document requests from law enforcement agencies. If a Congressional committee comes knocking at your door, the following are some practical tips to consider:
- 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. Understanding the rules of a particular committee will help you understand how far you can go to negotiate an informal request before it becomes a formal subpoena.
- Recognize that Congress has powers independent of the Judiciary. Unlike a grand jury investigation, a Congressional investigation has no judicial oversight. In other words, it’s not easy to go to court to fight over 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 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.
- 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. It can be critical that those representing you before Congress have sound professional relationships with key Members of Congress and their staffs in terms of conducting the best negotiation.
- Recognize that both Parties have an interest in your participation. Congressional investigations are political. Although both the Minority and Majority Members have an interest in your information or testimony, those interests often are not aligned. Keep open communications with Members and staff on both sides of the aisle to ensure the best outcome for you and your company.
- Do not ignore potential publicity. There will almost always be some publicity associated with a Congressional investigation. Plan responses to media and public inquiries. Even when you are granted assurances that your cooperation will not be disclosed publicly, prepare for leaks to the press with both political and public relations strategies.