Our client was charged with Conspiracy to violate the Foreign Corrupt Practices Act (FCPA). The case was dismissed by the government after it was made clear that the government had prosecuted the case incorrectly.
Understanding Congressional Investigations
Congressional investigations can be a big headache for both individuals and businesses, alike. 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. Companies that are the subject of Congressional investigations often risk temporary or permanent damage to their corporate reputation, which may affect investor confidence. Often times, individuals and businesses will be asked to disclose sensitive, confidential, and/or personal information. Failing to disclose requested documents and information could lead to Congressional subpoenas and possible criminal charges in federal court for failing to comply. An experienced white collar defense attorney familiar with Congressional investigations can assist to ensure that any individuals or businesses who are summoned by these federal authorities have their rights fully protected.
If you or your business are facing such investigation, the attorneys at who work with Mr. Eaton 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.
The Purpose of a Congressional Subpoena
The purpose of a subpoena is to command a targeted person to testify or produce documents to the committee to further it’s investigation, or both. The congressional committee hearing itself is often partisan and political, with committee members sometimes asking pointed questions to advance a particular agenda. The key to responding to an investigation request is to fully understand the investigation scope long before the committee hearing. Often, committee staff and investigators will have performed many interviews and sought many specific documents before the actual hearing. All of these activities signal the direction of the likely committee members, particularly the likely direction of the leadership.
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 because a truthful answer may implicate the witness in criminal activity. Refusing to answer a question under these circumstances is exercised by “pleading the Fifth Amendment,” a Constitutional right that allows a witness to refuse to testify because truthful answers could be used to incriminate the person. Congress can grant full or partial immunity to witnesses who refuse to testify and thus exercise their Fifth Amendment right.
Supreme Court Cases
The Constitution grants Congress broad authority to enforce its investigative power. 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 States, 360 U.S. 109 (1959)
- Watkins v. United States, 354 U.S. 178 (1957)
- Hutcheson v. United States, 369 U.S. 599 (1962)
- Yellin v. United States, 374 U.S. 109 (1963)
- United States v. Nixon, 418 U.S. 683 (1974)
- Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975)
Congressional Investigations Risks
No federal investigation should be taken lightly. Sometimes people who are called to testify before a congressional committee face criminal charges after the congressional hearing is complete. Charges that may result from congressional testimony can include, but are not limited to:
- False statements
- Obstruction of committee proceedings
- And many more.
Anyone subpoenaed for a congressional investigation should consider consulting with a well-qualified white-collar defense attorney.
While staff depositions are considered to be more efficient and less adversarial than congressional hearings, these special depositions are subject to a number of legal shortcomings. Congressional hearings are required to adhere to specific points, actions, or questions. However, during staff depositions 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 administered to witnesses during such depositions is not subject to the same force or penalties like that of perjury in open court, or in a congressional committee hearing.
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 does have a direct mechanism by which the Fifth Amendment may be overcome. However, with a congressional grant of 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. However, Congress alone cannot fully immunize a witness from prosecution. The U.S. Attorney’s office or other relevant DOJ departments within the Criminal Division must also agree. Even if immunity is granted, 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, each may review the grant immunity to ensure appropriate 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 Terry Eaton Attorney at Law 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 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 by Congress, are under investigation, or believe you may be under investigation by a congressional committee do not hesitate to speak with one of our dedicated white collar defense attorneys qualified to represent you in any congressional investigation.. Time is a factor and the stakes are high. Contact our DC law offices today to schedule an office consultation with one of our white-collar defense lawyers.