When Congress Investigates, Prepare and Coordinate Your Teams

Congressional investigations often aren’t well-understood outside Washington, D.C., but can have far-reaching effects for individuals, companies, and other organizations that wind up on the receiving end of a congressional subpoena or other request for information.

If skillfully handled, a congressional investigation may be weathered, with no lasting ill effects. If mismanaged, however, an investigation can be disastrous and produce harms ranging from reputational damage to legal jeopardy.

For that reason, it’s important to involve experienced counsel when a congressional investigation—or even the potential for one—arises. Response is a very specialized skill set that necessitates counsel with specific congressional and relevant subject matter expertise.

Several practical considerations should be addressed when developing and carrying out a response. They fall into three categories: cooperation, coordination, and preparation.

Cooperation

It’s sometimes impossible to come out unscathed as the target of an investigation, but cooperating with committees and their staff can often lessen the blow.

Effective cooperation doesn’t just mean compliance—it should be strategic. For example, it’s important to assess personalities, motivations, and the focus of the investigation.

Underestimating members and staff is one of the traps individuals and organizations fall into. They have access to a breadth of information and resources, often specialized expertise, and a platform to make their opinions known. An overt political campaign to undermine the merits of the investigation is futile and will only put you at a disadvantage when engaging with Congress.

It’s important to acknowledge the inquiry or request immediately and seek to establish a mutually agreeable timetable from the outset. It’s appropriate to request negotiated accommodations and compromises, such as use of search terms and agreement to narrowed requests. Meetings with staff may help as well. Develop a rapport. Be nice.

Coordination

Although responding to a congressional investigation may require all hands on deck, roles and responsibilities must be clearly defined and followed. Throughout the response, close coordination is vital, within the organization and with outside counsel and consultants.

The legal team should lead the response—almost without exception. It may be in-house but more often will be outside counsel retained for congressional investigations and subject matter expertise.

Although a congressional proceeding resembles other legal proceedings in many ways, it’s very different from the sorts of proceedings that occur before courts and administrative agencies. Perhaps most importantly, congressional committees generally aren’t acting as neutral fact finders and will often structure and conduct proceedings to advance desired outcomes.

Legal protections also work very differently—and sometimes not at all—in the context of congressional investigations. For example, privilege assertions are treated very differently by Congress, rules of evidence don’t apply to help keep fact-finding within certain bounds, and parties may request confidential treatment of information but ultimately have less ability to protect information than they would in a court or agency proceeding.

The legal team therefore must understand both the legal and political issues surrounding the investigation and work closely with team members responsible for other elements of the response.

In particular, the legal team will often want to coordinate closely with the organization’s government relations personnel, whether in-house or external. Although lobbyists shouldn’t lead the response to a congressional investigation, they can aid advocacy efforts with respect to the relevant committees and members of Congress regarding legislation that may be related to the investigation.

Government relations professionals may also have valuable information about the organization’s relationships with relevant committees and congressional members. This can help inform the work of the lawyers.

Because a congressional investigation is as much political as it is legal, coordination with communications personnel is also essential. Even if an investigation results in a generally positive outcome for an organization, the process can inflict significant reputational damage.

Public relations professionals should be ready to engage in helpful messaging to media, customers, and other stakeholders. However, the communications strategy must align with the counsel’s legal strategy.

Even within the legal team, coordination may be necessary between multiple specialists. For example, congressional investigations sometimes overlap with other parallel proceedings, which may require a coordinated response by various specialists.

If a congressional investigation stems from, or spurs, a criminal investigation or prosecution, coordination with the criminal defense team will be vital. Similarly, any parallel proceedings involving civil litigation or administrative proceedings will require coordination with the litigators and regulatory counsel responsible for those separate but related lines of effort.

It’s important to note that when there are parallel probes, a global resolution won’t be available because a congressional investigation is a distinct matter controlled by a separate branch of government with its own purpose.

Preparation

Effective preparation is critical when responding to a congressional investigation for several reasons.

First, preparation facilitates a structured, thoughtful, and strategic response. Second, it allows individuals and organizations to gather relevant documents and data, draft substantive responses to committee questions, develop written testimony, and provide accurate and complete information to Congress.

Third, preparation enables development of a coherent narrative that unifies legal, business, and communications strategies. And it helps avoid being caught flatfooted when in the hot seat—whether by public letter or when testifying before Congress.

Practicing before a “murder board”—a highly contentious group of examiners who play the role of various congressional members—is often a very effective way to prepare for anticipated lines of questioning. Bottom line: Sweat the preparation.

Navigating congressional investigations requires a blend of legal acumen and political savvy. Companies and their leadership must work with counsel—in coordination with government affairs and public relations teams as needed—to devise strategies for managing the combination of legal and political considerations while minimizing reputational risk from these often very public proceedings.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Amanda B. Robinson and David Plotinsky are partners with Morgan Lewis and co-leaders of the congressional investigations team.

Philip A. Miscimarra is partner with Morgan Lewis and a former chairman of the National Labor Relations Board.

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