January 29, 2019
With Democrats regaining the majority in the House of Representatives for the first time in nearly a decade, the investigative priorities of the lower chamber will shift—and corporations should expect (and prepare) to find themselves more frequently the subjects of investigations. Moreover, the investigative powers of several committees have expanded in significant ways since House Democrats last held committee gavels in 2010. And, while Republicans remain in charge of the Senate, new and returning chairs of a number of key investigative committees are likely to focus on issues that implicate several industries and private sector entities.
Unlike receiving a civil complaint or compulsory process in an Executive Branch investigation, when a congressional letter or subpoena arrives, targeted organizations may only have a matter of days to consider their response and devise a strategy, and often must do so amid significant media scrutiny and public attention. Congressional investigations often involve public attacks on a company’s reputation, which can imperil the goodwill upon which the company has built its business and maintains its competitive advantages. It is therefore crucial that potential targets evaluate their exposure to likely investigations in the 116th Congress, familiarize themselves with how such inquiries unfold—including the rules and procedures that govern them—and consider potential responses.
To assist possible targets and interested parties in assessing their readiness for responding to a potential congressional investigation, Gibson Dunn presents this brief overview of how such investigations are often conducted, Congress’ underlying legal authorities to investigate, various defenses that can be raised in response, and the changing political and investigative landscape of the 116th Congress. We also note missteps that subjects of investigations sometimes make when receiving an inquiry and best practices for how to respond.
I. What is a Congressional Investigation?
Congressional investigations present a number of unique challenges not found in the familiar arenas of civil litigation and Executive Branch investigations. Unlike the relatively controlled environment of a courtroom, congressional investigations often unfold in a hearing room in front of television cameras and on the front pages of major newspapers and social media feeds.
The first thing to know about congressional investigations is that Congress’ power to investigate is broad—as broad as its legislative authority. The “power of inquiry” is inherent in Congress’ authority to “enact and appropriate under the Constitution.” And while Congress’ investigatory power is not a general power to probe any private affair or to conduct law enforcement investigations, but rather must further a valid legislative purpose, the term “legislative purpose” is understood broadly to include not only gathering information for the purpose of legislating, but also for overseeing governmental matters and informing the public about the workings of government.
As a practical matter, numerous motivations (not always legitimate) often drive a congressional inquiry, including: advancing a chair’s political agenda or public profile, exposing criminal wrongdoing, pressuring a company to take certain actions, and responding to public outcry. Recognizing the presence of these underlying objectives and evaluating the political context surrounding an inquiry can therefore be a key component of developing an effective response strategy.
II. Investigatory Tools of Congressional Committees
Congress has many investigatory tools at its disposal, including: (1) requests for information; (2) interviews; (3) depositions; (4) hearings; (5) referrals to the Executive Branch for prosecution; and (6) subpoenas. If these methods fail, Congress can use its contempt power in an effort to punish individuals or entities who refuse to comply with subpoenas. It is imperative that targets are familiar with the powers (and limits) of each of the following tools to best chart an effective response:
On January 25, 2019, the House Rules Committee issued new regulations governing depositions by committee counsel. Significantly, the regulations now allow for immediate overruling of objections raised by a witness’s counsel and immediate instructions to answer, on pain of contempt, and appear to eliminate the witness’s right to appeal rulings on objections to the full committee (although committee members may still appeal). This will likely speed up the deposition process, as previously the staff deposition regulations required a recess before the chair could rule on an objection. Additionally, the regulations now expressly allow for depositions to continue from day to day and permit, with notice from the chair, questioning by members and staff of more than one committee. Finally, the regulations have removed a prior requirement that allowed objections only by the witness or the witness’s lawyer. This change appears to allow objections from staff or Members who object to a particular line of questioning.
As noted above, Congress will usually seek voluntary compliance with its requests for information or testimony. However, it may compel disclosure of information or testimony through the issuance of a congressional subpoena. Like Congress’ power of inquiry, there is no explicit constitutional provision granting Congress the right to issue subpoenas. But the Supreme Court has recognized that the issuance of subpoenas is “a legitimate use by Congress of its power to investigate” and its use is protected from judicial interference by the Speech or Debate Clause. Congressional subpoenas are also subject to few legal challenges. And “there is virtually no pre-enforcement review of a congressional subpoena.”
The authority to issue subpoenas is initially governed by the rules of the House and Senate, which delegate further rulemaking to each committee. While nearly every standing committee in the House and Senate has the authority to issue subpoenas, the specific requirements for issuing a subpoena vary by committee. These rules are still being developed by the committees of the 116th Congress, and can take many forms. For example, several House committees authorize the committee chair to issue a subpoena unilaterally and only require that notice be provided to the ranking member. Others, however, require approval of the chair and ranking member, or upon the ranking member’s objection, require approval by a majority of the committee.
Contempt of Congress
Failure to comply with a subpoena can result in contempt of Congress. Although Congress does not frequently resort to its contempt power to enforce its subpoenas, it has three potential avenues for seeking to implement its contempt authority.
III. Defenses to Congressional Inquiries
While potential defenses to congressional investigations are limited, they are important to understand—likely more so now with Democrats taking control of the House. The principal defenses are as follows:
As discussed above, a congressional investigation is required generally to relate to a legislative purpose, and must also fall within the scope of legislative matters assigned to the particular committee at issue. In a challenge to a committee’s jurisdiction, the party subject to the investigation must argue that the inquiry does not have a proper legislative purpose, that the investigation has not been properly authorized, or that a specific line of inquiry is not pertinent to an otherwise proper purpose within the committee’s jurisdiction. Because courts generally interpret “legislative purpose” broadly, these challenges can be an uphill battle. Nevertheless, this defense should be considered when a committee is pushing the boundaries of its jurisdiction.
Constitutional defenses under the First and Fifth Amendments may be available in certain circumstances. While few of these challenges are ever litigated, these defenses should be carefully evaluated by the subject of a congressional investigation.
When a First Amendment challenge is invoked, a court must engage in a “balancing” of “competing private and public interests at stake in the particular circumstances shown.” The “critical element” in the balancing test is the “existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness.” Though the Supreme Court has never relied on the First Amendment to reverse a criminal conviction for contempt of Congress, it has recognized that the Amendment may restrict Congress in conducting investigations. Courts have also recognized that the First Amendment constrains judicially compelled production of information in certain circumstances. Accordingly, it would be reasonable to contend that the First Amendment limits congressional subpoenas at least to the same extent.
The Fifth Amendment’s privilege against self-incrimination is available to witnesses—but not entities—who appear before Congress. The right generally applies only to testimony, and not to the production of documents, unless those documents satisfy a limited exception for “testimonial communications.” Congress can circumvent this defense by granting transactional immunity to an individual invoking the Fifth Amendment privilege. This allows a witness to testify without the threat of a subsequent criminal prosecution based on the testimony provided.
Attorney-Client Privilege & Work Product Defenses
Although committees in the House and Senate have taken the position that they are not required to recognize the attorney-client privilege, in practice, the committees generally acknowledge the privilege as a valid protection. Moreover, no court has ruled that the attorney-client privilege does not apply to congressional investigations. Committees often require that claims of privilege be logged as they would in a civil litigation setting. In assessing a claim of privilege, committees balance the harm to the witness of disclosure against legislative need, public policy, and congressional duty.
The work product doctrine protects documents prepared in anticipation of litigation. Accordingly, it is not clear whether or in what circumstances the doctrine applies to congressional investigations, as committees may argue that their investigations are not necessarily the type of “adversarial proceeding” required to satisfy the “anticipation of litigation” requirement.
IV. Lay of the Land in the 116th Congress
House of Representatives
With Democrats taking charge of the House for the first time since 2010, the chamber’s investigative priorities are likely to shift significantly to a number of issues Democrats have previously attempted to probe while they were in the minority. The investigative tools available to committee chairs also have significantly strengthened since Democrats were last in the majority.
For example, nearly all House committees now have authority that permits staff counsel to conduct depositions. And, as noted above, Democrats recently have removed the requirement that a Member must be present during the taking of a deposition and have adopted new regulations that will permit staff investigators to adopt a more aggressive posture. Such broad authority could make it more difficult for minority members to affect, influence, or otherwise hinder investigations to which they are opposed. The Democrats’ investigative arsenal is further bolstered by the fact that approximately a dozen committee chairs are empowered to issue subpoenas without consent of the ranking member. Democrats have thus gained command of a considerably more powerful investigative apparatus than existed in previous Congresses.
Many committees are likely to focus on oversight of the Trump administration; however, several members have signaled their intention to examine numerous topics affecting the private sector as well.
Industries and entities expected to face considerable scrutiny include:
We have also catalogued the publicly stated priorities of certain incoming chairs and other key Democratic members.
In their recently passed rules package, Democrats also re-established the House Select Committee on the Climate Crisis, which is mandated with examining issues related to climate change and will be chaired by Congresswoman Kathy Castor (D-FL). While the committee lacks subpoena power, a broad range of industry actors may find themselves on the receiving end of inquiries, particularly in light of the fact that several new House Democrats made climate change a top issue in their election campaigns. And the Select Committee can recommend that other committees issue subpoenas, which provides an added incentive to cooperate with its inquiries.
On the Senate side, while Republicans remain in control of the chamber, committee chairs have signaled that they are likely to investigate business sectors such as technology, health care, and pharmaceuticals. And unlike their Democratic counterparts in the House, Republican chairs are unlikely to divert significant committee resources to oversight of the Trump administration.
Below, we have catalogued areas in which certain committees may focus in the 116th Congress:
Additionally, Senate Democrats are expected to pursue numerous inquiries that they initiated in the previous Congress, some of which overlap with GOP priorities, including on issues related to data privacy concerns, social media company practices, e-cigarettes, banking regulations, and health care costs. And of course, Senate Democrats will remain focused on issues related to the Mueller investigation and, inevitably, private sector entities that may be tangentially related.
V. Top Mistakes and How to Prepare
Successfully navigating a congressional investigation requires a multifaceted mastery of the facts at issue, careful consideration of collateral political events, and crisis communications.
Here are some of the more common mistakes we have observed:
The consequences of inadequate preparation can be disastrous on numerous fronts. A keen understanding of how congressional investigations differ from traditional litigation and even Executive Branch or state agency investigations is therefore vital to effective preparation. The most successful subjects of investigations are those that both seek advice from experienced counsel and employ multidisciplinary teams with expertise in government affairs, media relations, e-discovery, and the key legal and procedural issues.
Gibson Dunn lawyers have extensive experience in both running congressional investigations and defending targets of and witnesses in such investigations. If you or your company become the subject of a congressional inquiry, or if you are concerned that such an inquiry may be imminent, please feel free to contact us for assistance.
 Barenblatt v. United States, 360 U.S. 178, 187 (1957).
 See Wilkinson v. United States, 365 U.S. 399, 408-409 (1961); Watkins v. United States, 354 U.S. 178, 199‑201 (1957).
 Michael D. Bopp, Gustav W. Eyler, & Scott M. Richardson, Trouble Ahead, Trouble Behind: Executive Branch Enforcement of Congressional Investigations, 25 Corn. J. of Law & Pub. Policy 453, 456 (2015).
 Id. at 456.
 See H.R. Res. 6, 116th Cong. § 103(a)(1) (2019).
 Consistent with past practice, Gibson Dunn will release a client alert outlining the specific subpoena rules for each committee as soon as they become available. See, e.g., Michael D. Bopp, F. Joseph Warin, Trent J. Benishek, & Alexander W. Mooney, The Power to Investigate: Table of Authorities of House and Senate Committees for the 115th Congress, https://www.gibsondunn.com/the-power-to-investigate-table-of-authorities-of-house-and-senate-committees-for-the-115th-congress/.
 See 165 Cong. Rec. H1216 (Jan. 25, 2019) (statement of Rep. McGovern).
 Bopp, supra note 3, at 457.
 Id. at 456-57.
 Id. at 457.
 Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504-05 (1975).
 Bopp, supra note 3, at 458.
 Id. at 459.
 Id. at 458.
 Gibson Dunn will detail these rules when they are finalized in an upcoming publication. See supra note 6.
 Bopp, supra note 3, at 460 (citing Anderson v. Dunn, 19 U.S. 204, 228 (1821)).
 Id. at 466.
 Id. at 461.
 See 2 U.S.C. §§ 192 and 194.
 Bopp, supra note 3, at 462.
 See 2 U.S.C. § 194.
 Bopp, supra note 3, at 467.
 See 2 U.S.C. §§ 288b(b) and 288d.
 Bopp, supra note 3, at 465.
 See 165 Cong. Rec. H30 (Jan. 3, 2019) (“If a Committee determines that one or more of its duly issued subpoenas has not been complied with and that civil enforcement is necessary, the BLAG, pursuant to House Rule II(8)(b), may authorize the House Office of General Counsel to initiate civil litigation on behalf of this Committee to enforce the Committee’s subpoena(s) in federal district court.”) (statement of Rep. McGovern).
 Barenblatt, 360 U.S. 109, 126 (1959).
 Watkins, 354 U.S. at 198.
 See id. at 197–98.
 See, e.g., Perry v. Schwarzenegger, 91 F.3d 1147, 1163 (9th Cir. 2009).
 See Quinn v. United States, 349 U.S. 155, 163 (1955).
 See Fisher v. United States, 425 U.S. 391, 409 (1976).
 See United States v. Doe, 465 U.S. 605, 611 (1984).
 See 18 U.S.C. § 6002; Kastigar v. United States, 406 U.S. 441 (1972).
 See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924 (8th Cir. 1997).
 See H.R. Res. 6, 116th Cong. § 103(a)(1) (2019).
 This committee was previously named the House Select Committee on Energy Independence and Global Warming. Republicans disbanded the committee when they regained control of the House in 2011.
Gibson, Dunn & Crutcher’s lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work or the following lawyers in the firm’s Congressional Investigations group in Washington, D.C.:
Michael D. Bopp – Chair, Congressional Investigations Group (+1 202-955-8256, [email protected])
F. Joseph Warin (+1 202-887-3609, [email protected])
Thomas G. Hungar (+1 202-887-3784, [email protected])
Alexander W. Mooney (+1 202-887-3751, [email protected])
Tommy McCormac* (+1 202-887-3772, [email protected])
* Not yet admitted to practice in the District of Columbia and currently practicing under the supervision of the Principals of the Firm.
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