Congressional Investigations: Tips from the Pros

March 26, 2019

iStock-885674728.jpgBy Dan Portnov

Last week I had the pleasure of attending a fascinating panel on congressional investigations hosted by MoloLamken. The panel featured defense attorneys Karen Christian, Reginald Brown, Amy Jeffress and Raphael Prober and was moderated by Molo’s Justin Shur.

We have written about congressional investigations before (here and here), and note that they are indeed unique creatures. The panel reinforced this notion. Among some of the key takeaways and tips from the panelists:

  • New Congress, new goals. The panel members explained that when one chamber of Congress changes hands, it works quickly to establish an agenda for investigations and hearings. With the recently sworn-in 117th Congress, panelists each predicted that healthcare, specifically drug prices, would be the focus of upcoming House committee hearings. (In addition to the President’s potential financial conflicts and mis-dealings.)
  • In a congressional hearing, the goals of the majority and minority parties will likely differ. So will the goals of the “up dais” and “down dais” members – the leadership or ranking members versus the junior members. Examples of the latter, such as Katie Porter (D-CA) and Alexandria Ocasio-Cortes (AOC) (D-NY), were cited for their recent hearing performances, during which they asked incisive questions and attempted to build factual bases for future inquiries. The main lesson: prepare for what each member’s position and agenda might be so that your client is not caught unawares. This can be accomplished, in part, by reviewing previous committee hearing videos or transcripts.
  • Similarly, understanding the dynamics of different committees is vital. In one example, Ms. Jeffress cited a committee where the majority and minority staffs did not interact and had wildly differing interests. Knowing this, and knowing that her client’s positions were more closely aligned to the minority, she established contact with minority staff members to get more information and strategy for responding to the majority’s potential questions.
  • Decorum and manners matter. The panelists cited former Acting Attorney General Matt Whitaker’s comment to Representative Jerrold Nadler (D-NY) during a hearing, that his 5 minutes for questions were up, as a big no-no. Each panelist remarked that the tone of any witness at a hearing should be one of respect and supplication. Even if existential facts have been misstated by a Congressmember’s question, the witness should begin their answer with a polite apology preceding the correction. Where the facts misstated are not critical, it may be best to let them be.
  • Engage counsel early. Ms. Christian noted that critical but avoidable mistakes can be made in the first days/weeks of an investigation. When a committee issues a subpoena to an entity, it has no way of knowing whether the entity is represented by counsel, so it typically sends the document to the public/government affairs office. As a result, committees sometimes hear nothing for a while, as the organization scrambles to find counsel or worse, underestimates the import of the subpoena and ignores it. Another unfortunate error occurs when the organization allows its public affairs liaison to respond to the subpoena or communicate with congressional staff without advice of counsel, thinking its lobbyists best suited for response. Often this results in statements made or documents produced that later need to be qualified or walked back. The lesson: engage counsel early to avoid the problems that can ensue if you do not have counsel.
  • Important advocacy can be accomplished in closed-door hearings. Closed-door hearings are often attended by congressional staff who are well-versed in the subject matter. Counsel who bring their clients in for such hearings have more freedom to advocate positions to staff, preview answers to questions that might be asked in open hearings, and also go off the record to advise their clients more frequently without fear of poor optics.
  • In response to a question from the audience, Ms. Christian gave an example of another faux pas in congressional investigations: not responding to subpoena requests while engaging lobbyists to directly advocate to members or Congress. She noted that such behavior draws the ire of investigating staff and when the staff learns of lobbyists setting up meetings, it usually attempts to sit in on those meetings, which may then get uncomfortable. Ultimately, however, panelists agreed that lobbyists and lawyers can work together effectively – just so long as the latter do not cede control of responding to committee requests to the former.
  • At one point, Mr. Shur asked the panel how to respond to a speech/diatribe by a Congressmember during a hearing when no real question is asked. Mr. Brown half-jokingly responded that the witness should NOT make eye contact and just pretend to take notes, lest the Congressmember decide s/he wants an actual response.
  • Prepare, prepare and prepare some more. Citing examples both good and bad, the panel uniformly recommended thorough preparation of witnesses appearing in front of Congress. Ms. Jeffress noted that new members, such as Rep. Porter, had staff combing through companies’ prior legal filings for material to be probed at hearings. These types of inquiries are now fair game and counsel should be as least as diligent as congressional staff in reviewing similar documents in preparation for a hearing.

In sum: be polite and be prepared! The experienced panel provided great insights about defense counsel’s ability to help clients navigate Congressional investigations. We look forward to attending future panels on the topic and reporting back.

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