July 9, 2019
For the fifth successive Congress, Gibson Dunn is pleased to release a table of authorities that summarizes the various, and, in many instances, expanding investigative authorities and powers of each House and Senate committee. We believe that understanding the full extent of a committee’s investigative arsenal is crucial to successfully navigating a congressional investigation.
Congressional committees have the power to issue subpoenas to compel witnesses to produce documents, testify at committee hearings, and, in some cases, appear for depositions. If a subpoena recipient refuses to comply, committees may resort to contempt proceedings. As a result, the failure to comply with a subpoena and adhere to committee rules during an investigation may have severe legal and reputational consequences. As we explained in a client alert issued earlier this year, however, there are defenses to congressional subpoenas, including challenging a committee’s jurisdiction, asserting attorney-client privilege and work product claims, and raising constitutional challenges.
Committees may adopt their own procedural rules for issuing subpoenas, taking testimony, and conducting depositions, though in the House, general deposition procedures applicable to all committees are provided for in the House Rules and subject to regulations issued by the chair of the Committee on Rules. Each committee may reissue and if it chooses alter its rules at the commencement of each Congress.
House and Senate committees adopted their rules for the 116th Congress earlier this year. We have highlighted noteworthy changes below. It is important to remember that, in addition to the rules detailed in our table of authorities, the committees are also subject to the rules of the full House or Senate.
Some items of note:
Our table of authorities is meant to provide a sense of how individual committees can compel a witness to cooperate with their investigations. But each committee conducts congressional investigations in its own particular way, and investigations vary materially even within a particular committee. While our table provides a general overview of what rules apply in given circumstances, it is essential to look carefully at a committee’s rules to understand specifically how its authorities apply in a particular context.
Gibson Dunn lawyers have extensive experience defending targets of and witnesses in congressional investigations. They know how investigative committees operate and can anticipate strategies and moves in particular circumstances because they also ran or advised on congressional investigations when they worked on the Hill. If you have any questions about how a committee’s rules apply in a given circumstance, please feel free to contact us for assistance. We are available to assist should a congressional committee seek testimony, information or documents from you.
Table of Authorities of House and Senate Committees:
 See Investigations in the 116th Congress A New Landscape and How to Prepare, https://www.gibsondunn.com/investigations-in-the-116th-congress-a-new-landscape-and-how-to-prepare/#_edn6.
 See H.R. Res. 6, 116th Cong. § 103(a)(1) (2019).
 The House Transportation and Infrastructure Committee allows for unilateral issuance of a subpoena “[i]f a specific request for a subpoena has not been previously rejected by either the Committee or subcommittee.” Rule IV(d)(1).
 See H.R. Res. 6, 116th Cong. § 103(a)(1) (2019).
 See 165 Cong. Rec. H1216 (Jan. 25, 2019) (116th Congress Regulations for Use of Deposition Authority).
 The regulations provide that deposition questions “shall be propounded in rounds” and that the length of each round “shall not exceed 60 minutes per side” with equal time to the majority and minority. See supra at note 4. The regulations, however, do not expressly limit the number of rounds of questioning. In this manner, they differ from the Federal Rules of Civil Procedure which expressly limit the length of depositions. See Fed. R. Civ. P. 30(d)(1) (“Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.”).
 See supra at note 4.
 See S. Res. 70, § 13(e) (2019) (Judiciary); id. § 12(e)(3)(E) (Homeland Security).
 See Jay R. Shampansky, Cong. Research Serv., 95-949 A, Staff Depositions in Congressional Investigations 8 & n.24 (1999); 6 Op. O.L.C. 503, 506 n.3 (1982). The OLC memo relies heavily on the argument that the Senate Rules never mentioned depositions at that time and those rules still do not mention depositions today.
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, firstname.lastname@example.org)
Thomas G. Hungar (+1 202-887-3784, email@example.com)
Alexander W. Mooney (+1 202-887-3751, firstname.lastname@example.org)
Tommy McCormac (+1 202-887-3772, email@example.com)
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