White Collar Attorney

Understanding Congressional Investigations

Congressional request for information can create havoc for individuals or businesses. Businesses can find themselves in the midst of chaos of responding to congressional inquiries while having to perform damage control to keep the company’s reputation intact throughout the investigation as it can negatively impact investor confidence. Often times, individuals and businesses will be asked to disclose sensitive, confidential, or personal information. Failing to disclose requested documents and information could lead to subpoenas and contempt proceedings for failing to comply. A congressional investigations attorney can assist to assure that any individuals or businesses who are summoned by these federal authorities are able to cooperate with the congressional investigation request without divulging sensitive information.

If you or your business are facing such investigation, the attorneys at Price Benowitz can provide the insight and experience that you will need to achieve the best possible results. Our attorneys will walk you through every step of the process and patiently and thoroughly explain all of the intricacies involved in such matters. There are a number of factors that they must review, so it is crucial for you to contact one of our attorneys to gain a complete understanding of the process. In the meantime, please refer to the following information for a general overview of the congressional investigations process.

Representation for Congressional Hearings

The Purpose of a Subpoena

The purpose of a subpoena is to get the targeted person to testify or produce documents to the committee for its purposes, or both. The committee hearing itself is often partisan and political, with committee members asking pointed questions to advance a particular agenda. The key to responding to an investigation request is to fully understand the investigation long before the committee hearing. Often, committee staff and investigators will have performed many interviews and sought many specific documents before the hearing itself. All of these activities signal the direction of the committee members, particularly those in charge.

Congress’s power to initiate investigations is typically limited to government entities and agencies, as in the Iran-Contra affair or the infamous Clinton sex scandal. The Supreme Court has ruled that Congressional authority in this respect is limited to the analysis and examination of existing laws or on the basis of considering new or amended federal statutes, and stems as we know it today from the Teapot Dome bribery scandal of the 1920s. The Court stated that Congress had the right to specifically investigate “charges of misfeasance and nonfeasance in the Department of Justice.” As a result of this ruling, the Court also upheld the right of Congress to initiate arrest proceedings on contempt charges against individuals refusing to offer testimony, citing the premise that the investigation “would be materially aided by the information which the investigation was calculated to elicit” had the parties concerned not refused.

The party testifying at a congressional investigation hearing is expected to do so under oath and truthfully. However, unlike a trial, a party testifying cannot rely on a lawyer to speak for him. To navigate the legal risks involved in saying too much — which can subsequently turn into a criminal or civil lawsuit — a party has to decide whether to answer the committee’s questions or decline to say anything. Refusing to speak is exercised as “pleading the Fifth Amendment,” a Constitutional right to avoid saying anything that could be used to incriminate the person. Congress can grant full or partial immunity to witnesses who refuse to speak and exercise their Fifth Amendment rights.

Supreme Court Cases

Congress established broad powers to enforce Congress’ power of inquiry. Significant Supreme Court case laws that supports and defines the authority of Congress to conduct investigations are listed below.

  • McGrain v. Daugherty, 273 U.S. 135 (1927)
  • Quinn v. United States, 349 U.S. 155 (1955)
  • Barenblatt v. United States360 U.S. 109 (1959)

Congressional Investigations Risks

No federal investigation should be taken lightly. Many people in such situations may find themselves facing charges after the congressional hearing is complete. Charges that may result from your testimony can include, but are not limited to:

  • False statements
  • Contempt
  • Perjury
  • Obstruction of committee proceedings
  • And many more.

Anyone subpoenaed for a congressional investigation should immediately consult with a well-qualified white-collar defense attorney.

Staff Depositions

While staff depositions are considered to be more efficient and less adversarial than in-camera Senate hearings, these special depositions are subject to a number of legal shortcomings. Congressional hearings are required to adhere to specific points, actions, or questions, but it is not uncommon for an ambitious or misguided staff member to take the questioning during these depositions on tangents that have no relevance to the actual actions in question. Similarly, the oath of honesty administered during such depositions suffers from not being subject to the same force or penalties like that of perjury in open court.

Granting of Immunity

Under the Fifth Amendment to the Constitution, no person may be compelled to give evidence against himself or herself in any setting, for any reason. Congress recognizes this privilege, but does have a mechanism by which the Fifth Amendment may be overcome. By granting immunity from prosecution based upon testimony, Congress both satisfies the requirement of the Fifth Amendment and allows itself access to the information desired of a given individual. This is by no means an assurance that a person may not be prosecuted for tangential or other criminal acts outside the scope of congressional investigation, or on the basis of evidence gathered and sealed by the prosecution prior to the congressional investigation.

This additionally requires the cooperation and consent of the Office of the United States Attorney General, because this office will ultimately be the prosecuting authority. Such immunity requests, once they are duly submitted by Congress, are subject to a ten-day review period by the Attorney General and potentially a further twenty-day review by the Supreme Court. While neither body has authority to overturn an immunity bargain on its own grounds, they may review to ensure procedure was followed and that the information sought by this compulsory testimony is in accordance with the proper functions of Congress.

Experienced Congressional Investigations Attorneys

Consulting and working with one of the experienced attorneys at Price Benowitz is critical for arming yourself with the best protection in a congressional investigation. You will need an attorney who understands how Congress works and how congressional investigations are conducted. You also want to consult with an attorney who has a strong track record for handling such matters and who is based in Washington, DC. While your attorney cannot speak for you, he or she can attend the hearing and give counsel during the hearing, providing valuable guidance on what questions to answer and the type of responses you should provide. This is a legal protection allowed for anyone appearing under a subpoena, and it should not be over-looked or under-valued.

Contact Our Firm Today

If you have been subpoenaed, are under investigation or believe you may be under investigation by a congressional committee do not hesitate to speak with a dedicated congressional investigations attorney. Time is a factor and the stakes are high. Contact our DC law offices today to schedule an office consultation with one of our top-notch white-collar defense attorneys.