A Client’s Guide To Congressional Investigations

2y ago
32 Views
3 Downloads
1.51 MB
7 Pages
Last View : 1m ago
Last Download : 2m ago
Upload by : Alexia Money
Transcription

A Client’s Guide toCongressional Investigations

You have just received a letter from a congressionalcommittee stating that it has begun an investigationand would like your company to provide them withrelevant information. The committee specificallyrequests that you respond to a set of questions, producedocuments, make certain employees available forinterviews and, eventually, provide a witness to testifyat a hearing. What do you do?Here are answers to a number of frequently askedquestions that people ask when Congress comes calling.

A Client’s Guide to Congressional InvestigationsDoes Congress have the power to makethis request?It probably does. Courts have historically held thatCongress has extraordinarily broad powers to probe.Article One of the Constitution gives Congress theauthority “To make all Laws which shall be necessaryand proper” and this has been consistently interpretedas encompassing the power to investigate.1 The U.S.Supreme Court has ruled that “the power of inquiry—with the process to enforce it—is an essential andappropriate auxiliary to the legislative function.”2Former Chief Justice Earl Warren observed that“[t]he power of Congress to conduct investigations isinherent in the legislative process.” And, he continued:“That power is broad. It encompasses inquiriesconcerning the administration of existing laws as wellas proposed or possibly needed statutes. It includessurveys of defects in our social, economic or politicalsystem for the purpose of enabling the Congress toremedy them.”3This power, however, is not without limit. Congressmust conduct investigations only in pursuit of “thelegislative function.”4 In discussing this importantlimitation, the Supreme Court later cautioned that“[t]here is not general authority to expose the privateaffairs of individuals without justifications in terms ofthe functions of Congress nor is the Congress a lawenforcement or trial agency. No inquiry is an end initself; it must be related to, and in furtherance of, alegitimate task of the Congress.”5Therefore, as long as Congress can demonstraterelevance to some legitimate legislative function,it can conduct an investigation. In practice, it isextraordinarily rare to succeed in arguing thatCongress lacks the authority to conduct a particularinvestigation. Generally, a company is safe to assumethat any investigative request from Congress is valid;it should promptly consult with counsel and determinehow to respond.What rules govern this process?It depends on which committee sent the request.The House of Representatives and Senate operateunder different rules, and each body delegates the12345U.S. Const. art. I, § 8.McGrain v. Daugherty, 273 U.S. 135, 181-182 (1927).Watkins v. United States, 354 U.S. 178, 187 (1957).Kilbourn v. Thompson, 103 U.S. 168, 204 (1880).Watkins, 354 U.S. at 187.power to investigate to its committees.6 In turn, eachcommittee adopts its own rules and often individualsubcommittees will adopt their own special rules forconducting investigations.Therefore, it is crucial to review and understand therules that apply to the committee making the requestof your company. Although the Senate and Houserules are published and publicly available, manycommittees and subcommittees post their own ruleson their respective websites. If not posted online,they can be requested directly from the committee orsubcommittee offices.As with the local rules and practices in a particularcourt, each committee develops and follows informal“rules” of their own. Counsel representing a companyshould be knowledgeable of these “local rules.”Do congressional committees havesubpoena power?Yes. Committees in both bodies of Congress have thepower to issue subpoenas to require the productionof documents or the attendance of witnesses.7Subpoenas issued by committees operate with “thesame authority as if they were issued by the entireHouse of Congress.”8Committee rules vary as to the specific requirementsfor issuing a subpoena. Some require a majority ofthe members of the committee to vote to issue a6 See Rules of the House of Representatives, 115th Cong., RuleX, clause 2(b)(1) and Standing Rules of the Senate, Rule XXVI,clause 1.7 See Eastland v. United States Servicemen’s Fund, 421 U.S. 491,505 (1975) (holding that congressional subpoena power is “anindispensable ingredient of lawmaking”).8 Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C. Cir. 1978), cert.denied, 441 U.S. 943 (1979).A Client’s Guide to Congressional Investigations2

subpoena, while others delegate the authority solelyto the chairman of the committee or require thechairman to obtain only the consent of the rankingmember before issuing a subpoena. In addition,almost all committees allow a chairman, alone, toissue subpoenas during congressional recesses or inemergency situations.Although committees have subpoena authority, veryfew committees begin their investigation with theissuance of a subpoena, preferring instead to requestmaterials and witnesses by letter. For a numberof legal and public relations reasons, targets ofinvestigations are usually well advised to work withcommittee staff to avoid the issuance of a subpoenaunless a “friendly” subpoena is deemed necessaryfor a company to discuss a particular matter or releasecertain confidential information.What if the company refuses to complywith a congressional subpoena?The Supreme Court has long recognized Congress’power to hold a witness in contempt as inherent to itslegislative authority.9 There are three different kinds ofcontempt proceedings: inherent contempt, statutorycriminal contempt and civil contempt. Under theinherent contempt power of Congress, an individual isphysically brought before either body of Congress byits sergeant-at-arms, tried by that body and imprisonedfor a period of time but not beyond the adjournmentof that session of Congress. This power has not beenexercised in over 70 years but was used over 85times from 1794 to 1930 to compel the production ofdocuments or testimony from witnesses.9 Anderson v. Dunn, 19 U.S. (1 Wheat.) 204, 227 (1821).Statutory criminal contempt was enacted in 1857 asan alternative to the cumbersome practice of inherentcontempt. An individual who refuses to testify orproduce documents subject to a subpoena may befound guilty of a misdemeanor carrying fines up to 100,000 and imprisonment for up to one year.10 Thisprocess begins when a contempt citation is approvedboth at the committee level and then on the House orSenate floor. After it has been certified by the speakerof the House or the president of the Senate, a U.S.Attorney is obligated to bring the matter to a grandjury.11 Criminal contempt has become more popularsince Watergate, particularly in recent years, andremains the most effective and viable enforcementmechanism in the House.The Senate has enacted a civil contempt procedurewhereby the U.S. District Court for the District ofColumbia has jurisdiction to order a person to complywith a Senate subpoena.12 If the person still does notcomply, they are tried through summary proceduresbefore the court and could face judicial sanctions. In1981, for example, William Cammisano, alleged topossess information about organized criminal activity,spent two years in jail for refusing to testify before theSenate Permanent Subcommittee on Investigations.Do we have to produce documentsor testify about information that isprivileged?It depends on the privilege asserted. Committeesare bound by certain constitutional privileges. Forexample, the right to invoke the Fifth Amendmentprotection against self-incrimination in response toa question is recognized, although committees willusually require witnesses to invoke that right in personand in public.While the law is not completely settled on theavailability of common-law privileges (i.e., attorneyclient, work-product and deliberative-process) inthe context of congressional investigations, mostcommittees will determine if a privilege applies on acase-by-case basis where the need for the informationis weighed against the harm caused to the client byits production.13 Generally, committees will respectvalid and properly asserted claims of privilege but mayrequire both an agreement as to the scope and natureof when the privilege attaches and a record or log totrack what is being withheld.Evidentiary privileges, like those that protect anindividual from having to reveal trade secrets, will10 2 U.S.C. §§ 192, 194 (2012).11 See U.S. Congressional Research Service: Congressional Oversight Manual (RL30240; June 10, 2011), by Frederick M. Kaiseret. al., 33–34.12 28 U.S.C. § 1365 (2012).13 See Kaiser et. al., supra, at 42–44.3 2019 Akin Gump Strauss Hauer & Feld LLP

not automatically afford any protection becausethe Federal Rules of Evidence do not apply tocongressional committees.Companies are usually best served when thesecomplicated, and incredibly consequential, issues arenegotiated with committee staff early in the processin an effort to prevent later problems. It is critical tofocus not just on the impact that these issues canhave on the congressional investigation itself, but onthe significant ramifications that these issues can haveon business and reputational concerns generally, aswell as on any other related parallel investigations, civillitigation, or regulatory or legislative issues.Is an interview with a congressionalcommittee like a deposition? Is iton the record? How is an interviewdifferent than testifying at a hearing?Most interviews are not as formal as a depositionand are always held in private. Attorneys serving ascommittee staff will typically conduct the interviewand, depending on their goals, may have theinterview recorded. The company witness shouldbe accompanied by counsel. In either case, what issaid can be made public.14 Issues surrounding theinterviews, including public disclosure, are oftennegotiable, and the company should be ready topropose and support its position as to the format ofthe interview early in the process.It is important to remember that all interactions witha congressional committee are conducted pursuantto an official government investigation, and a numberof federal criminal provisions apply. In particular, anystatements made must, to the best of one’s ability,be true and complete. Federal perjury, obstructionof justice and false statement provisions apply tostatements made and records produced during thecourse of a hearing or deposition, and even in an“informal” interview that is not recorded.What you say or do can, and likely will, be usedagainst your interest. The need for accuracy andattention to detail is essential in all matters before acongressional committee.If called to testify at a hearing, whatcan we expect?First, the scene inside the hearing room will dependon the nature of the investigation and the witnessesappearing.14 Witnesses and counsel should be particularly aware that transcripts of witness interviews, when made public, can be usedagainst the company in possible private litigation. Counselshould take care to ensure the record of the interview is asclear and balanced as possible.If the issue itself or the witnesses testifying are highprofile, the executive should expect a full hearingroom. Most members of the committee will bepresent and sitting on a raised dais, staff will line thewalls, public seats will be full and throngs of print,video and photo journalists will be jockeying to capturethe moment. This is not typical of every hearing butrepresents one extreme of what to expect, especiallyif the congressional committee has leaked materialbeforehand to increase public interest. At the otherextreme, some hearings may have only one or ahandful of members present with little or no presscoverage.It is important to remember that a hearing room isnot a courtroom. Among other important differences,a witness cannot object to a line of questioning. TheFederal Rules of Evidence do not apply, and lawyersrepresenting the witness are not typically allowed tointerject on their client’s behalf or otherwise testify.The witness is there to answer the questions ofthe members and, depending on the nature of thehearing, should plan to be answering questions for atleast a few hours.The hearing will begin with an opening statementfrom the chairman, followed by an opening statementby the ranking member. At the conclusion of theopening statements, each witness will deliver a shortopening statement, usually limited to five minutes. Alonger statement can be submitted for the record atthe discretion of the committee. In most investigatoryhearings, witnesses testify under oath and are publiclyasked to stand and swear that the testimony theywill give is true. Again, a witness who willfully givesfalse testimony under oath is subject to prosecutionfor perjury under 18 U.S.C. 1621, carrying penalties offines and/or imprisonment.A Client’s Guide to Congressional Investigations4

At the conclusion of the witness’ statement,questioning will then begin with the chairman. Afterthose questions, majority and minority committeemembers will take turns questioning the witness atleast until each member has had a turn. Members ofthe committee are usually only given a few minutes toquestion the witness, often only three to five minutesper round of questioning. Therefore, witnesses whotestify before a committee hearing should prepare formany different questioning styles and will likely findthemselves repeating answers, especially if there aremultiple rounds of questioning.It is wise for a witness to be respectful to thecommittee members even if they are not respectfulof the witness. A witness may not like the questionor the tone of the member, but visibly frustrated anddifficult witnesses can create further problems forthemselves and their companies.Thorough preparation is essential for the success ofany appearance before a committee. Considerabletime should be spent not only in selecting theappropriate witness (when selection is an option)but also in preparing the written and oral testimony,and preparing substantively and stylistically for thequestions and issues that are likely to be raisedat the hearing. A successful appearance before acommittee is rarely an accident but, rather, the resultof experience and many hours of hard work, includingmock sessions or “murder boards” where the witnessresponds to potential lines of questioning.Should we schedule meetings withcommittee members and their staff?Meeting with committee members and staff canbe helpful in certain circumstances. Such meetingsare particularly useful if the company believes thereare facts that are not adequately being reported,not readily available to or otherwise not known tomembers or staff.However, all contact with the committee and its staffshould be conducted by counsel, or with counselpresent, to ensure a proper legal buffer betweenthe company and the committee. It cannot beoveremphasized that an investigative committee isunique and not comparable to the operations of atypical legislative committee.Should the company be concernedabout this congressional inquiry?Yes. If not handled properly, a congressionalinvestigation can be extremely costly to a company,not only in financial terms but in terms of harm eitherto the company’s image or to the careers of companyexecutives. Often, the greatest impact will be seen5 2019 Akin Gump Strauss Hauer & Feld LLPin parallel litigation or investigations. Congressionalinvestigations can also have an effect on a company’sstanding with regulators and in the marketplace.Therefore, requests for information from Congressshould be handled promptly and professionally, andwith a full understanding of, and appreciation for,these potential collateral consequences.Investigations can vary in length and complexity,ranging from a single hearing to an ongoinginvestigation lasting years. The latter can resultin multiple requests for information and witnesstestimony. Navigating this process can be verydifficult, and it is advisable to have an attorney familiarwith congressional investigations who can skillfullyadvise a company and guide them through thisprocess and out the other end – ideally allowing thecompany and its executives to keep their focus ontheir business.On a final note, it is important to try to see aroundthe corners and to get a head start on preparation fora possible congressional investigation. Requests forinformation from Congress rarely provide a companyample time to respond, and time and effort spent inadvance of an inquiry will typically not only reduce thestress and burden on the company, but will likely havesignificant cost savings as well.

For more information, please contact:Steven R. Ross202.887.4343sross@akingump.comRaphael A. Prober202.887.4319rprober@akingump.comKaren Christian202.887.4265kchristian@akingump.comThomas C. Moyer202.887.4528tmoyer@akingump.comAkin Gump Strauss Hauer & Feld LLP is a leading global law firm providing innovative legal services and business solutions to individuals and institutions.Founded in 1945 by Richard Gump and Robert Strauss with the guiding vision that commitment, excellence and integrity would drive its success, the firmfocuses on building lasting and mutually beneficial relationships with its clients. Our firm’s clients range from individuals to corporations and nations. We offerclients a broad-spectrum approach, with over 85 practices that range from traditional strengths such as appellate, corporate and public policy to 21st centuryconcentrations such as climate change, intellectual property litigation and national security.akingump.com 2019 Akin Gump Strauss Hauer & Feld LLP. All rights reserved. Attorney Advertising. Prior results do not guarantee a similar outcome.

A Client’s Guide to Congressional Investigations 4 not automatically afford any protection because the Federal Rules of Evidence do not apply to congressional committees. Companies are usually best serve

Related Documents:

Jul 25, 2019 · Where: Client List Client Profile. Note: Please search for each client before creating a new record. See “ Search for a Client” for more information. To add a new client to the system, follow the steps below. 1. On the left menu, click . Client List. 2. On the Client List screen, click . Add Client. Figure 2-2: Client List screen, Add .

Testing for JavaScript Execution (OTG-CLIENT-002) Testing for HTML Injection (OTG-CLIENT-003) Testing for Client Side URL Redirect (OTG-CLIENT-004) Testing for CSS Injection (OTG-CLIENT-005) Testing for Client Side Resource Manipulation (OTG-CLIENT-006) Test Cross Origin Resource Sharing (OTG-CLIENT-007) Testing for Cross Site Flashing (OTG .

10 User Guide Connect Client 1 Installing the Connect Client Installing the Connect Client on Windows OS Installing the Connect Client on Windows OS 1. Do one of the following: Open the e-mail notification from your Connect administrator that describes how to install the Connect client, and click the link to install the client.

Independent Personal Pronouns Personal Pronouns in Hebrew Person, Gender, Number Singular Person, Gender, Number Plural 3ms (he, it) א ִוה 3mp (they) Sֵה ,הַָּ֫ ֵה 3fs (she, it) א O ה 3fp (they) Uֵה , הַָּ֫ ֵה 2ms (you) הָּ תַא2mp (you all) Sֶּ תַא 2fs (you) ְ תַא 2fp (you

work/products (Beading, Candles, Carving, Food Products, Soap, Weaving, etc.) ⃝I understand that if my work contains Indigenous visual representation that it is a reflection of the Indigenous culture of my native region. ⃝To the best of my knowledge, my work/products fall within Craft Council standards and expectations with respect to

The Intake Process 3 Engagement Letters 4 Managing Clients 5 Handling a Difficult Client 5 The Finish Line 8 Conclusion 9 Client Fees and Billing 10 14 Timely Tips for Client Relations 12 30 Training Topics 13 SAMPLE FORMS Prospective Client Questionnaire 14 Office Intake: New Client Form A 16 Office Intake: New Client Form B 17

Marketing & Business Development KPI Examples 1. Client Growth Rate 2. Dormant Client Percentage 3. Average Fee per Client/Matter 4. Average Fee per NEW Client/Matter 5. Marketing/Business Development Budget Ratio 6. Marketing/Business Development Cost per Client 7. Client Retention 8. Growth in Top Clients 9. Practice Areas per Client 10.

Contents vi VPN Client Administrator Guide OL-5492-01 CHAPTER 7 Customizing the VPN Client Software 7-1 Customizing the VPN Client GUI for Windows 7-2 Areas Affected by Customizing the VPN Client 7-2 Installation Bitmap 7-2 Program Menu Titles and Text 7-3 VPN Client 7-4 Setup Bitmap—setup.bmp 7-5 Creating the oem.ini File 7-5 Sample oem.ini File 7