Public Policy & Law Alert
January 2008
Author:
Michael J. O’Neil
+1.202.661.6226
mike.oneil@klgates.com
K&L Gates comprises approximately
1,500 lawyers in 24 offices located in
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represents capital markets participants,
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companies, leading FORTUNE 100 and
FTSE 100 global corporations and public
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please visit www.klgates.com.
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Congressional Investigations 101:
What You Need to Know
At the beginning of the 110th Congress, the House of Representatives gave extraordinary
subpoena and staff deposition authority to its Oversight and Government Reform Committee. The intent was clear—increase the tempo and range of Congressional oversight. That
Committee has responded with investigations and high profile hearings on topics as diverse
as private contractors in Iraq and steroids in baseball. Other House and Senate committees
are directing their efforts, and their considerable professional staff resources, towards investigations and hearings on the war, the looming economic slowdown, mortgage reform,
foreclosure relief, and market and regulatory reform.
2008 is a presidential election year. Expectations for legislative action on major issues
are universally low. Partisanship, on the other hand, will be high. In such an atmosphere,
those who receive a Congressional “invitation” to meet with, or who may be called to
testify before, a Congressional committee should both prepare and conduct themselves
with the recognition that a Congressional investigation is a proceeding in which much is
at stake—for the business whose officers must testify, for those individuals personally, and
often for their industry as a whole.
The following points are key to understanding and preparing for a Congressional investigation:
„
Congressional investigations are the Big Time. Recognize the risks and opportunities—good and bad—they represent for your business and yourself. For instance, it
is a crime to frustrate a Congressional investigation, whether or not your testimony is
under oath, and increasingly testimony is taken under oath. This also applies to activities that lead up to a hearing, such as interviews, depositions, document production etc.
Congressional investigations are run by political professionals who know how to direct
criticism where it hurts the most. Congressional hearings make the news.
„
Congress makes its own rules. Investigations can be conducted to be educational, to
build a record for legislation, to generate publicity, to embarrass, or some combination
of all those purposes. Whatever the purposes you think may be in play, be prepared for
the worst. You may be asked to produce documents or to be interviewed, or required
to be deposed or to testify at a public hearing. Any information you provide at each
stage comes under the control of Congress, which, at least in theory, does not recognize
protections any citizen can count on in a court proceeding, e.g., privileged communications.
„
Understand the rules. Hearing rooms aren’t courtrooms, nor are witnesses given
great flexibility. Nonetheless, some legal rules, such as preserving records that may be
the subject of an official investigation, apply. Neglect them at your peril.
Public Policy & Law Alert
„
Congressional investigations are political
events. Like trials, the stakes, e.g., personal or
corporate reputation, can be high. Unlike trials,
there is not always a winner and a loser. The well
prepared survive to fight another day. A well prepared interviewee or witness will also identify potential allies behind the dais and seek to reinforce
shared positions.
„
The real audience isn’t the committee. Any
investigation can result in a public report which
you can neither review nor challenge before it is
released. If there is a hearing it may be televised;
most are. Recognize that, as often as not, both
investigative reports and hearings are designed to
produce sound bites at 5:00.
„
Know your message. Plan for the questions you
can anticipate. Know your message, keep it simple, and repeat it often.
„
Prudence is your watchword. Know the facts
well. Don’t guess. Don’t lose your cool and
don’t lecture.
„
Practice. Practice. Practice.
Prepare thoroughly. Prepare often. Prepare for the worst.
„
Get professional help. Just as you would not
consider setting foot in a court room without competent trial counsel, don’t even consider appearing before a Congressional committee without
experienced, competent legislative counsel.
K&L Gates has an active, experienced and highly
competent legislative practice. K&L Gates has also
been ranked the 5th largest law and lobbying firm
in the United States (Legal Times, March 2007). Its
attorneys and professionals collectively have hundreds of years of Congressional experience on both
sides of the witness table. In addition to a former
Senator, Representative and Attorney General, the
practice features former committee counsel who have
organized and staffed numerous hearings, investigations and legislative markups for both House and Senate committees. K&L Gates regularly represents individuals, corporations, and associations—both foreign
and domestic—before House and Senate committees
and the leaderships of both Houses.
If you would like to discuss a Congressional
investigation or other government affairs matter,
please contact Bruce Heiman (202-661-3935, bruce.
heiman@klgates.com) or Mike O’Neil (202-661-6226,
mike.oneil@klgates.com).
K&L Gates comprises multiple affiliated partnerships: a limited liability partnership with the full name Kirkpatrick & Lockhart Preston Gates
Ellis LLP qualified in Delaware and maintaining offices throughout the U.S., in Berlin, and in Beijing (Kirkpatrick & Lockhart Preston Gates
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incorporated in England and maintaining our London office; a Taiwan general partnership (Kirkpatrick & Lockhart Preston Gates Ellis)
which practices from our Taipei office; and a Hong Kong general partnership (Kirkpatrick & Lockhart Preston Gates Ellis, Solicitors) which
practices from our Hong Kong office. K&L Gates maintains appropriate registrations in the jurisdictions in which its offices are located.
A list of the partners in each entity is available for inspection at any K&L Gates office.
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used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer.
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