Trouble Ahead, Trouble Behind: Executive Branch Enforcement of Congressional Investigations

May 16, 2016

When responding to a request from a congressional committee, a company’s counsel does not often consider immediately whether and how the response could trigger an Executive Branch enforcement action.  But it has become increasingly necessary for those responding to congressional requests to think about not only how the requesting committee will view their response, but also whether it could trigger interest by federal or state enforcement agencies.  

Gibson Dunn partner Michael D. Bopp, associateScott M. Richardson and former associate Gustav W. Eyler are the authors of "Trouble Ahead, Trouble Behind: Executive Branch Enforcement of Congressional Investigations," recently published in the Cornell Journal of Law and Public Policy.  The authors review Congress’s power to investigate and discuss the authorities available to Congress and the Executive Branch for enforcing congressional investigative prerogatives.  They explore how each branch’s use of its available enforcement authorities has changed over time, with the Executive Branch becoming more aggressive in bringing enforcement actions that emanate from congressional investigations and Congress relying more frequently on such enforcement activity.  

The authors also discuss the effect of this shift in enforcement activity and what it means for congressional investigations.  Among other things, they note how Executive Branch enforcement of congressional investigations raises certain practical and constitutional concerns that require individuals and corporations to approach such proceedings with increased caution.  They explain that now, more than ever, Executive Branch actions complement congressional investigations or develop as a result of information elicited through them.  The result is that individuals and corporations may face penalties and sanctions divorced from the political safeguards typically associated with congressional action.  

The article includes a series of practice pointers designed to address the real possibility that a congressional investigation of a company or an individual could lead to an Executive Branch enforcement proceeding.   

Click here to view article. 

© 2016, Cornell Journal of Law and Public Policy, Vol 25:453, May 2016.  Reprinted with permission. 

Mr. Bopp is based in Gibson Dunn’s Washington, D.C. office, where he chairs the firm’s Congressional Investigations Subgroup, Public Policy Practice Group and Financial Markets Crisis Group.  His practice focuses on congressional, internal corporate, and other government investigations, public policy and regulatory consulting in a variety of fields, and managing and responding to major crises involving multiple government agencies and branches.  He is a former Associate Director of the Office of Management and Budget. 

Mr. Richardson, a member of the firm’s Litigation Department in Washington, D.C., previously worked as a legislative aide to a Member of Congress and is a former law clerk to the Honorable Roger W. Titus of the United States District Court for the District of Maryland.